TaxTMI 
TaxTMI 
2015 (7) TMI 499
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 2014], wherein, while setting aside the orders passed by this Tribunal in appeal and the orders passed by the Hon'ble High Court in Writ/Review petitions, the Hon'ble Apex Court have directed this Tribunal to proceed with the hearing on merits of the case, without being influenced by any kind of concession that was given at the earlier point of time. Hence, without considering the earlier orders passed on the disputed issue, the appeal is being taken up for hearing. 2. Background of the case, leading to this appeal, are summarized herein below :- 2.1 Section 3A was inserted in the Central Excise Act, 1944 w.e.f. 14.05.1997, which enables the Central Government to charge Central Excise duty on notified goods on the basis of an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt inter alia, stated that though rolls of 210 mm Dia was originally installed in the factory, but due to some problem, the capacity of the said Dia rolls was changed in April' 1997, and in its place, 185 mm Dia rolls was installed. Vide the said letter, the appellant requested the Central Excise authorities to determine the capacity of the mill on the basis of 185mm Dia and not to assess the capacity on the basis of previous year production, since the amending notification dated 30.08.1997 came at a later date, after installation of the said rolls in April' 1997. 2.4 Based on the correspondence exchanged between the Central Excise department and the appellant, the Commissioner vide order-in-original dated 8.6.2001 determined the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ribunal. The Tribunal vide final order dated 18.04.2006 reported in 2006 (206) ELT 294 held that Rule 5 of the Capacity Determination Rules, 1997 is not applicable to the present case and the duty was required to be paid on the basis of capacity of production worked out in terms of the formula in Rule 3(3) and accordingly the Tribunal held that annual Capacity of Production is 3613 MT and hence there is no short levy. The Tribunal, thus, allowed the appeal filed by the appellant. 2.7 Against the above order of the Tribunal, the Department filed an appeal before Hon ble Chhattisgarh High Court (Tax Case No. 39/2006). Hon ble High Court disposed of the said appeal vide order dated 11.10.2012 by which the matter was remanded to the Tribunal....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al capacity determination or production was to be determined only on the basis of the formula prescribed in Rule 3(3) and there was no provision that if actual production during 1996-1997 was more than the capacity of production determined under Rule 3(3). It is the actual production during 1996-1997 which would be taken as annual capacity of production. Since such a provision came w.e.f. 1.9.1997, the same cannot be applied in those cases where the declaration for determination of annual capacity of production was made during period prior to 1.9.1997. (2) The Apex Court in the case of Doaba Steel Mills has held that from the language of Rule 5 it is evident that where annual capacity is determined under Rule 3(3), Rule 5 springs into ac....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nnual capacity of production on the basis of various parameters, one of which was D i.e. nominal centre distance of the pinions in the pinion stands in millimeter. Rule 3(1) provided that a hot rolling mill shall declare the value of d , n , i and Speed of rolling , the parameters referred to in sub Rule (3) to the Commissioner of Central Excise with a copy to Assistant Commissioner. Sub Rule (2) of Rule 3 provided that on receipt of the declaration regarding parameters received from the assessee, the Commissioner shall get the parameters verified for their correctness. Sub rule (3) of Rule 3 prescribes the formula for determination of annual capacity of production on the basis of the parameters d , n , i and speed of rolling . Sub rule 4(2....
X X X X Extracts X X X X
X X X X Extracts X X X X
....le 5 ibid, or in other words, when after initial determination of the capacity of production of an assessee on the basis of the parameters declared by him under Rule 3(1), the assessee changes the parameters resulting in lesser capacity of production, whether Rule 5 would be applicable and the Apex Court answered this question in affirmative holding that Rule 4(2) has to be read with Rule 5. The Apex Court in para 16,17, & 18 held that language of Rule 5 is clear and unambiguous in the sense that in a case where annual capacity is determined/ re-determined by applying the formula prescribed in sub Rule 3(3), Rule 5 springs into action and has to be given full effect to and the conclusion becomes inevitable that Rule 5 would be attracted for....