TaxTMI 
TaxTMI 
2008 (4) TMI 327
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....ing questions of law : "(1) What is the scope of Rule 3, 4 and 5 of the HRRSMACD Rules, 1997 in case of fixation of annual capacity of production in view of the change of parameters to be effected by the manufacturers? (2) Whether the Tribunal was right in holding that Rule 5 of the HRRSMACD Rules 1997 is not the relevant clause for determination of annual capacity of production where there was a change in the parameters and, that it was only Rule 4 which was relevant rule in determining the annual capacity of production, when Rule 5 does not exclude Ihe cases of re-determination in case of change in parameters by applying Rule 4 of the said Rules?" The full form of HRRSMACD Rules 1997 is Hot Re-rolling Steel Mills Annual Capacity ....
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....submissions including change in parameters of 16" mill. CEGAT by its order set aside the order of Commissioner and remanded the case for de novo consideration by the Commissioner. The respondent reiterated its claim and requested that excise duty has to be determined on the reduced annual capacity production by then, with effect from 5-3-1988, on account of change in parameters of its Rolling Mill. 5. The Commissioner who adjudicated the matter after considering the submissions made by the respondent held that in terms of Rule 4(1) and Rule 5 of HRRSMACD Rules, 1997, there cannot be any benefit granted to the respondent. Aggrieved by the order passed by the Commissioner after remand, it preferred further appeal before CEGAT. CEGAT placed....
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....in the machinery. In those circumstances the Tribunal held that Rule 5 had no application to those cases. Those decisions cannot constitute the basis for the contention that Rule 5 is wholly inapplicable irrespective of whether the change in machinery is for reduction in the capacity, to retain the same capacity or augmenting the capacity of production. When the capacity remains the same or the capacity is increased on account of change of machinery, no unintended hardship is visited upon tax payers by the application of Rule 5. However, when change of machinery leads to reduction of annual capacity, Rule 5 would not apply." In view of this we have no hesitation to answer question no. 1, in favour of the respondent and against the Revenu....
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....ni Narayan Dalal & Another - (2001) 10 SCC 231; Collector of Central Excise, Pune v. Tata Engineering & Locomotives Co. Ltd. - 2003 (158) E.L.T. 130 (S.C); Birla Corporation Ltd. v. Commissioner of Central Excise - 2005 (186) E.LT. 266 (S.C); and Jayaswals Neco Ltd. v. Commissioner of Central Excise, Nagpur - 2006 (195) E.L.T. 142 (S.C). It has been held in all these cases that if no appeal is filed against an earlier order or the earlier appeal involving the identical issue was not pressed by the Revenue, the Revenue is not endued to press the other appeals involving the same question. In Birta Corporation Ltd. (supra), this Court observed as follows : "In the instant case the same question arises for consideration and the facts are alm....
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....It was further contended by him that power to frame Rules was given to the Central Government only under Section 3A of the Central Excise Act 1944. If Section 3A itself stood omitted from the Statute book, the Rules will have no legs to stand on. Thus, they will also automatically stand omitted. 10. To press this point further, learned Counsel for the respondent has placed reliance on the following judgements of the Supreme Court reported in : (1) AIR 1970 Supreme Court 494 in M/s. Rayala Corporation (P) Limited v. The Director of Enforcement, New Delhi. (2) 2000 (119) E.L.T. 257 (S.C.) in Kolhapur Canesugar Works Limited v. Union of India. (3)&n....