TMI Blog2005 (3) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... On 18-5-1998 and 29-5-1998, the appellants made a request for re-determination of ACP for the period from September, 1997 to March, 1998 under Section 3A(4) of the Central Excise Act. The representation of the appellants dated 18-5-1998 regarding re-determination of ACP under Section 3A(4) of the Central Excise Act was rejected by the adjudicating authority by order dated 13-1-1999. The order dated 13-1-99 passed by the Commissioner rejecting their request for re-determining ACP under Section 3A(4) of the Act was challenged by the appellants before the Tribunal and the Tribunal under its Final Order Nos. A/387-88/99-NB (DB), dated 4-5-1999 [1999 (113) E.L.T. 177 (Tribunal)], remanded the matter to the adjudicating authority for examination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase. The other party has also every right to refer the case law and other decisions, if any, of the Supreme Court before the adjudicating authority. 3. The impugned order has been passed by the Commissioner as per the directions given in the Final Order No. A/214/2003-NBC, dated 8-4-2003 and A/387-88/99-NB, dated 4-5-1999 and the Commissioner came to the conclusion that the appellants vide letter dated 7-8-1997 has declared to avail the scheme described in sub-rule (3) of Rule 96ZO of the Central Excise rules for full and final discharge of their duty liability for manufacture of ingots of non-alloys steel and they never opted out of the said scheme. He relied on the decision of the Supreme Court in the case of CCE v. Venus Castings Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e adjudicating authority for examination of the appellants' claim for determination of ACP on actual production basis under Section 3A(4) of the Act, he should have determined the capacity accordingly. He also referred to the Bombay High Court decision in case of Union of India Ors. v. Rico Gems Corporation [1987 (32) E.L.T. 644 (Bombay)] where it was held that when the Supreme Court dismissed the SLP against the decision of the Single Bench, if reopened, it would lead to judicial indiscipline. In the present case, the order of the Tribunal No. A/387-88/99 under which the Commissioner was directed to determine the ACP on the basis of actual production under Section 3A(4) of the Act and the appeal filed by the Department before the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e clear that relief or right granted under the Section cannot be taken away by Rule. If Section 3A(4) of the Central Excise Act gives a right to the appellants to get benefit under the said Section, the same cannot be taken away by declaration filed under the Rule. The Commissioner was duty bound to consider the application dated 18-5-1998 for determination of actual production of the appellants. The Commissioner rejected the claim on the ground that the appellants had filed a declaration under Rule 96ZO(3) on 7-8-1997 and it was not withdrawn. We find that this issue was already considered by the Tribunal while remanding the case in Final Order No. A/387-88/99-NB, dated 4-5-1999. Therefore, in view of the decision of the Bombay High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
