2022 (1) TMI 447

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....d non-alloys steels products, falling under Chapter Heading Noo.7214.90, 7216.90 & 7213.90 of Central Excise Tariff Act, 1985. 2. 1.08.1997 & 30.08.1997 Notification No. 31/97 and Notification No. 43/97 were issued, by which goods manufactured by the Appellant were notified under Section 3A(1) of the Central Excise Act, 1944 ('Act'). 3 24.9.1997 17.02.1998 & 14.08.2000 Annual production capacity of the three units of the Appellant provisionally determined on the basis of an undated declaration, alleged to be filed by Appellant on 1.8.1997. Order-in-Original dated 24.09.1997 was challenged by Appellant before this Hon'ble Court, but during the pendency of appeal, annual production capacity was finalised vi....

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....id in excess in accordance with law. We, further, direct the Adjudicating Authority to determine the duty, on the basis of actual production, taking into account the returns filed by the appellant and allow adjustment of duty already deposited. We also direct the appellant to appear before the Adjudicating Authority with a copy of this order and seek the determination of duty in terms of this order. 2. In remand proceedings, the learned Commissioner, vide impugned order-in-original dated 9.10.2017, remanded the matter to the Deputy/ Assistant Commissioner of Central Excise, holding as follows:- "In view of my findings, as discussed and detailed above, I am in agreement with the direction of Hon'ble CESTAT that the party is entit....

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....to produce evidence in support of his claim, determine the actual production and re-determine the amount of duty payable by the assessee with reference to actual production at the rate specified in sub-section (3). Thus, Section 3-A(4) provides for determination of actual production and re-determination of duty payable by Commissioner of Central Excise only and not by any other officer. Further, the words 'Commissioner of Central Excise' used in Section 3 A(4) does not include sub-ordinate officers such as Deputy or Assistant Commissioner. B. Learned Commissioner cannot delegate his powers to officers junior to him, in absence of any such power in the statute. Apex Court, in the case of M. Chandru Vs Member Secretary (2009....

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....al be allowed and an appropriate order be passed. 5. Learned Authorised Representative relies on the impugned order. 6. Having considered the rival contentions, we find that the impugned order passed by the ld. Commissioner is not contrary to the Final Order of this Tribunal dated 10.01.2017, wherein the issue was remanded to the Adjudicating Authority (Commissioner). Learned Commissioner has only remanded the matter to the jurisdictional Deputy/ Assistant Commissioner observing that the relevant documents are not readily available before him. Section 3 A(4) (supra) is followed as the commissioner has decided the issue in principle and remanded the matter simply, only for the purposes of calculation of the duty payable. He exercised t....