2016 (9) TMI 179

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....tion No.33/97-CE (N.T.) dated 01.08.1997, manufacturer of M/s Ingots etc. were given option to pay duty on the basis of Annual Production Capacity (APC) under Rule 96 ZO(3) of CER, 1944. The appellant opted to discharge duty liability under Rule 96 ZO(3) of CER, 1944 vide their letter dated 26.08.1997. It is further case of the appellant that although they had two furnaces in their factory of about 4.5 M.T. each, they had mentioned in their application that only one was running in condition, and/or use. It is the further case of the appellant that the Ld. Commissioner failed to consider this fact and fixed the total capacity of the furnaces together as annual capacity of 28,800 M.T. for the year 1997-98, and, accordingly, for the period Sep....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....by, this Tribunal remanded the matter to the Commissioner for passing a speaking order, and accordingly, no demand was tenable, on the basis of earlier order, fixing production capacity dated 19.3.1998. Pursuant to remand by this Tribunal vide Order-in-Original dated 20.2.2006, the Jt. Commissioner have considered the matter re-fixing the duty liability at Rs. 9,68,163/- taking into account, the arithmetical mistake in the earlier order and the show cause notice and further also observed, after going through the Order No. 64/Commr./Tech/98 dated 19.3.1998, I find that its language was quite clear and had no room for ambiguity. Para two of this order clearly speaks that APC was fixed after conducting the verification for determination of cap....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... 96 ZO and 96 ZP of CER by Finance Act, 2001, and further urged that the impugned order is a non-speaking order as the authority has failed to apply its mind to the grounds raised and further appreciate the facts of record. This appeal was dismissed for non-making of pre-deposit and non-prosecution vide order dated 17.8.2012. 5. Vide the order dated 22.7.2014, passed in R.O.A No. 5528 of 2013, this Tribunal had restored the appeal and also granted stay of the balance demand with interest taking the notice of fact that the appellant had already deposited Rs. 5 lakhs. The Revenue had preferred CEA No.99 of 2015, before Hon'ble Allahabad High Court and in final Order dated 31.5.2015, the Hon'ble High Court was pleased to dispose of th....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ed to proceed with the appeal ex parte. Heard the learned D.R. and perused the record. 7. The learned A.R. for Revenue have relied on the impugned order and have also produced the copy of order of Hon'ble Supreme  Court dated 24.11.2015, in the case of batch of appeals, Shree Bhagwati Steel Rolling Mills and others Vs. Commissioner of Central Excise reported at 2015 (326) E.L.T. 209. The Hon'ble Supreme Court in the said ruling, after having considering the issue of repeal and/or omission of Rules 96ZO, 96ZP & 96ZQ with effect from 11.5.2001, have held that although, the levy of the duty is saved but the levy of penalty and interest are paid and cannot be enforced. 8. Having considered the rival contentions, we find that the ....