TaxTMI 
TaxTMI 
2019 (2) TMI 842
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....-rolling mill under Rule 96ZP of the erstwhile Central Excise Rules, 1944. The Appeal No. E/76041/2013 is against the Order-in-Appeal No. 38/CE/B-I/2012 dated 20/11/2012 in which the Commissioner (Appeals) finalized the demand for differential duty against the appellant on the basis of the Annual Capacity of Production determined by Commissioner. Both the appeals are being decided by this common order. 2. The dispute covers the period 01/09/1997 to 31/03/1998. During the period 01/03/1997 to 31/03/2000, Compounded Levy Scheme was in vogue as per the Notifications issued under Section 3 A (as it existed them) of the Central Excise, Act, 1944. As per the terms of this Scheme, the Annual Capacity of Production was required to be determined ....
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....al Authorities proceeded to demand the differential duty from the appellant between the duty paid by them and the duty payable in terms of the ACP fixed by the Commissioner vide order dated 28/04/1998. The demand for differential duty ultimately came before this Tribunal and the Tribunal vide the Final Order No. A- 938/KOL/2007 dated 22/05/2007 set aside the order passed by the Lower Authority and remanded the matter to the Commissioner with a direction to pass an order on the application dated 15/07/1998 and re-work the differential duty. 4. In compliance to the Tribunal's direction as above, the ACP was re-fixed by the Commissioner vide the impugned order dated 23/07/2008 which is challenged in Appeal No. E/461/2008. The demand for dif....
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....ed on the following case laws:- (i) S. G. Multicast Pvt. Ltd. V. CCE, 2002 (145) ELT 315 (T) (ii) Dina Metals Ltd. V. CCE, 2003 (159) ELT 690 (T) (iii) Kaveri Alloy Castings Pvt. Ltd. V. CCE, 2007 (219) ELT 173 (T) (iv) Patiliputra Steels Pvt. Ltd. v. CCE, 2003 (159) ELT He specifically referred to the decision of the Tribunal in the case of S. G. Multicast Pvt. Ltd. Vs. CCE, Jamshedpur [2002(145) ELT 315 (Tri.)], in which the Tribunal has observed that the figures reflected in the RG-I unless disputed represents the actual production of the factory and the same is required to be accepted. He prayed that the annual capacity of production may be re-fixed in terms of Section 3A (4), on the basis of actua....
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.... dated 22/05/2007 and ordered the Commissioner to pass an order on the Application dated 15/07/1998 and work out the differential duty, if any accordingly. The present proceedings is against the order passed by Commissioner in the denovo proceedings. However, it is seen that he has re-fix the capacity as done in his initial order dated 28/04/1998. He has declined to consider the plea made by the appellant to re-fixe the capacity keeping in view of the actual production figures recorded in RG-1. 11. We have carefully considered the application made by the appellant dated 15/07/1998. In the said application, the appellant has outlined the following major reasons why the Annual Capacity of Production is claimed to be far lesser than the ACP....
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....nnual Capacity of Production simply on the basis of the formula will be unfair to the appellant. As such, the capacity is required to be re-determined as per the provisions of Section 3A (4). The Sub section is reproduced below for ready reference:- "(4) Where an assessee claims that the actual production of notified goods in his factory is lower than the production determined under sub-section (2), the Commissioner of Central Excise shall, after giving an opportunity to the assessee to produce evidence in support of his claim, determine the actual production and redetermine the amount of duty payable by the assessee with reference to such actual production at the rate specified in sub-section (3)." 13. In terms of the above provision....