TaxTMI 
TaxTMI 
2014 (12) TMI 904
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....HRSMACD Rules, 1997, come into operation? 3. Whether the SLP filed by the department (SLP No.3400/2003) against the decision of the Honourable High Court, Haryana & Punjab in the case of CCE, Chandigarh -vs- Doaba Steel Rolling Mills, reported in 2002 (139) ELT 285 (P&H) was admitted by the Honourable Apex Court and the same is pending disposal, is CESTAT correct in relying on the judgment of Honourable High Court (H&P), which has not reached finality in deciding the issue in favour of the assessee?" 2. The first substantial question of law has no relevance because the provisions of Hot Re-rolling Steel Mills Annual Capacity Determination (HRSMAD) Rules, 1997, more particularly, Rule 4(1) provides the answer and the same reads as follows: "4(1) The capacity of production for any part of the year, or any change in the total hot re-rolling mill capacity, shall be calculated pro rata on the basis of the annual capacity of production determined in the above manner stated in rule 3. (2) In case a manufacturer proposes to make any change in installed machinery or any part thereof, which tends to change the value of either of the parameters dneI and speed of rolling referred to ....
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....ntial question of law, viz., the second substantial question of law, which reads as follows: "2. Whether, when the Annual capacity so determined under sub rule (3) of Rule 3 of HRSMACD Rules, 1997, is still less than the actual production of 1996-97, would no provision of Rule 5 of HRSMACD Rules, 1997, come into operation?" 7. To answer this substantial question of law, we may have to traverse little bit to the facts of the case, which are relevant for the disposal of the appeals. 8. The respondent/assessee is engaged in the manufacture of hot-rolled products of Iron and Steel and were working under the Compounded Levy Scheme of Rule 96ZP of the Central Excise Rules, 1944 read with Section 3A of the Central Excise Act, 1944, whereby they are liable to pay duty on excisable goods on the basis of the determination, with regard to the Annual Capacity Production of the factory in which such goods are produced, by a competent officer specified under the Rules. The Commissioner of Central Excise passed an order dated 16.1.2004 determining the Annual Capacity Production (ACP) for the period 1.9.1997 to 26.7.1999. Another ACP order has also been passed for the period 27.7.1999 to 31.12.....
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.... of time. The relevant portion of the order of the Tribunal reads as follows: "After giving our careful consideration to the submissions, we find that the question whether Rule 5 of ACD Rules is applicable to the facts of this case can be settled in the light of the Tribunal's larger bench decision in the case of Sawanmal Shibumal Steel Rolling Mills (Supra) wherein it was held that Rule 5 was not applicable where there was a change of parameters of the factory resulting in reduction of production capacity. The decision of the High Court in the case of Doaba Steel Rolling Mills (supra) is also to the same effect. Hence we have invariably to arrive at the conclusion that both the orders of the Commissioner determining ACP by applying Rule 5 are unsustainable in law and further that ACP requires to be determined afresh for the relevant periods in terms of Rule 3(3) of ACD Rules. We, therefore, set aside the orders of the Commissioner and remand the case to him for a fresh determination of ACP in terms of Rule 3(3) ibid instead of determining ACP by applying Rule 5. As regards the effective date, after examining the facts presented before us by both sides, we notice that the asse....
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....part of the final order, no direction has been issued to the Commissioner to requantify the demand of duty in terms of the ACP to be redetermined by him. Such Miscellaneous Petitions have been disposed of by the Tribunal by order dated 27.12.2005 in Miscellaneous Order Nos.557 to 560 of 2005, which reads as follows: "This application filed by the department points out a mistake in the final order passed by this bench in the captioned appeals. Apart from this, ld. SDR points out a duplication of appellant's name in the cause title of the Final Order. The cause title mentioned the names 'M/s.Kanishk Steel Industries Ltd.'and 'M/s. Kanishk Steels Ltd.' as appellants. It is pointed out that there is only one appellant, which is M/s.Kanishk Steel Industries Ltd.. This submission is not contested. Accordingly, it is ordered that the name "M/s.Kanishk Steels Ltd."be deleted from the cause title. 2. Yet another grievance made by the department is that the operative part of the final order did not specifically direct the Commissioner to requantify the demand of duty in terms of the ACP to be redetermined by him. Ld.SDR has stated reasons for the prayer for incorporatin....
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....ty of production of hot rolled products. This is the only formula whereunder the annual capacity of production of the factory, for the purpose of charging duty in terms of Section 3A of the Act, is to be determined. Second proviso to subsection (2) of Section 3A of the Act contemplates re-determination of annual production in a case when there is alteration or modification in any factor relevant to the production of the specified goods but such re-determination has again to be as per the formula prescribed in Rule 3(3) of the 1997 Rules. It is clear that sub-rule (2) of Rule 4, which, in effect, permits a manufacturer to make a change in the installed machinery or part thereof which tends to change the value of either of the parameters, referred to in subrule (3) of Rule 3, on the basis whereof the annual capacity of production had already been determined, would obviously require re-determination of annual capacity of production of the factory/mill, for the purpose of levy of duty. It is plain that in the absence of any other Rule, providing for any alternative formula or mechanism for re-determination of production capacity of a factory, on furnishing of information to the Commiss....
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....appeal is allowed 19. C.M.A.Nos.748 to 751 of 2008 filed challenging the miscellaneous order of the Tribunal dated 27.12.2005 in Misc.Order Nos.557 to 560 of 2005 were admitted by this Court on the following substantial question of law: "Whether in the event of re-determination of ACP as remanded by the Honourable Tribunal and any duty is determined as demandable, the adjudicating authority can impose penalty under Rule 96ZP(3) of Central Excise Act, 1944" 20. In the light of the decision rendered in C.M.A.Nos.950 to 952 of 2007 answering the second substantial question of law in favour of the Revenue following the decision of the Supreme Court and permitting the competent Authority to proceed further by following the procedure prescribed in the relevant Rules, the question of law admitted by this Court in C.M.A.Nos.748 to 751 of 2008 is also answered in favour of the Revenue and against the assessee. The appeals are allowed. 21. C.M.A.No.3549 of 2005 filed challenging the order passed by the Tribunal was admitted by this Court on the following substantial questions of law: "1. Whether it can be said that the respondents had complied with Rule 4(2) of Hot Re-rolled Steel....