2019 (4) TMI 1405

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....d to dispose of the representation pertaining to re-fixation of capacity of production on the basis of only one batch type furnace which was functional through the impugned period. This is the third round of litigation before this Tribunal against the impugned order. 2. The brief fact of the case is that the appellant is engaged in the manufacture of bars, hot re-rolled products of non-alloy steel falling under chapter heading 7213.90, 7214.19 and 7211. 11 of the First Schedule to Central Excise Tariff Act, 1985, along with waste and scrap generated classifiable under 7204 90 of the First Schedule. The said goods were leviable to duty as per the provision contained in Section 3 A of Central Excise Act, 1944 (hereinafter referred to as 'Ac....

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....e case was adjudicated confirming the demand as per the impugned order through a series of adjudication order passed on various occasions. Being aggrieved by the said order, the appellant is before us in appeal. 4. Ld. Advocate on behalf of the appellant submits that the said order is not correct and proper and also in complete violation of the direction of this Tribunal vide order dated 11/4/2007. 5. Ld. Advocate on behalf of the appellant also submits that the Commissioner had observed in the impugned order that the appellant had two options before them; either to pay duty under Rule 96 ZP on 400 per MT of the capacity determined or under sub-Rule 3(3) of 96 (ZP) at the rate of 300 per MT of annual capacity determination and to pay a ....

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....sioner that ACP was correctly fixed in case of appellant initially 2064.399 MT is correct and required to be duty accordingly. In this regard it is also submitted by ld. Advocate that the ld. Commissioner fail to appreciate that when the capacity of rolling mill was not determined finally the question of imposition of penalty on the appellant is not at all permissible. 7. Ld. AR on behalf of the Revenue reiterates the grounds contained in the impugned order. 8. Heard the parties and perused the appeal records. 9. In this appeal we find that this Tribunal has passed to two orders referred(supra) directing the Adjudicating Authority to consider the fact that instead of two only one batch type furnace working, the appellant had submitted....