2015 (12) TMI 1444

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....32/97-CE dated 01.08.1997. The appellants filed declaration dated 20.08.1997 under Hot Re-Rolling Steel Mills Annual Capacity Determination Rules, 1997 and opted for payment of tax under the Scheme read with Rule 96ZP sub-rule 3. The ld.Commissioner determined Annual Capacity of Production (ACP) vide letter/order dated 23.07.1998 whereby, the ACP of the appellants' unit was fixed at 7368 MT. As permissible under Rule 4 (2) of the Hot Re-Rolling Steel Mills Annual Capacity Determination Rules, 1997, the appellants revised the parameter (determining factors) under permission granted by the ld.Commissioner pursuant to which vide Order dated 19.08.1998/29.10.1998, the ACP was re-determined on 1968 MT, but in view of the provisions of Rule 5....

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....Hon'ble High Court of Allahabad vide Central Excise Reference Application No. 48 of 2000, which was dismissed on limitation vide Order dated 19.02.2007. Thereafter, the Revenue preferred an appeal before the Hon'ble Supreme Court. In a bunch of appeals decided together vide order dated 06.07.2011, the issue was decided in favour of the Revenue, where the Hon'ble Apex Court held that as the formula is prescribed for determination of capacity given in Rule 3 (3) and the same is referred in Rule 5, thus, where the actual production is higher, for the financial year 1996-97 in comparison to the ACP determined in terms of Rule 3 (3) read with Rule 4 (2) ACP will be taken as ACP for the financial year, 1996-97. 4. Several periodical ....

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....e Hon'ble High Court is in favour of the assessee. The issue remains sub-judice and the findings of the Final Order of the Hon'ble Apex Court dated 06.07.2011, are in favour of the Revenue. In this view of the matter, no penalty is excisable. The ld.Counsel draws my attention that the provisions of Section 3A, are deleted in March, 2001 by the Act 14 (1), 2001 w.e.f. 11,05.2001. It is further pointed out that there being no sharing clause in the amending Act deleted Section 3A, the pending proceedings are not saved. Accordingly, as held by the Hon'ble Gujarat High Court in the case of Krishana Processsors Vs. Union of India : 2012 (280) ELT 186 (Guj.), which was followed by this Tribunal in the case of Alwar Processors Pvt. Ltd.....