9911796707
TMI Blog2005 (5) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... MS ingots [Chapter 72 of the CETA Schedule]. During the material period, they were working under Compounded Levy Scheme and discharging duty liability on the basis of the Annual Capacity of Production (ACP) determined by the jurisdictional Commissioner. Accordingly, they were liable to pay duty under Rule 96ZO(1) at the rate of Rs. 750/- PMT from 1-9-1997. The Commissioner had determined their ACP and communicated the same by letter dated 3-4-1998, as per which the ACP was 3.5 MTS. That decision of the Commissioner was challenged before the Tribunal and, by Final Order No. 42/2004, dated 5-1-2004, this Bench directed the Commissioner to determine the ACP afresh after issuing a show-cause notice and hearing the party. Pursuant to the remand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitting that such a plea was not raised in the first round of litigation. We find force in this objection raised by learned Jt. CDR. The above plea was available to the party when we passed the remand order, but they chose not to raise it. On the other hand, they obtained a favourable order and enjoyed its benefit by submitting themselves to the jurisdiction of the Commissioner in the remanded proceedings. We are of the considered view that the appellants are estopped from raising the above plea at this stage. The plea for inclusion of additional ground stands rejected. 4. Adverting to the case on merits, learned Counsel submits that, during the period of dispute, the appellants were working under Rule 96ZO(1) and, ipso facto, had th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that the same ought to have been examined by the Commissioner, learned Counsel has placed reliance on the Karnataka High Court's decision in Bhuwalka Steel Industries Ltd. v. Union of India -2003 (159) E.L.T. 147 (Kar.). 5. Learned Jt. CDR has reiterated the findings of the Commissioner. He submits that it is not as if the Commissioner did not examine the claim of the party for re-determination of ACP on the basis of actual production. He did examine the claim and rejected the same on valid grounds. 6. After giving careful consideration to the submissions, we find that learned Commissioner considered a certificate of one Shri S.K. Vinayagem, Insurance Surveyor/Loss Assessor, which was produced by the appellants. With referen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Karnataka High Court in the case cited by counsel. We are of the considered view that the Commissioner has to take into account all these materials and make a fresh decision on the ACP of the appellants in terms of Section 3A(4) of the Act as this provision stood during the period of dispute. 7. For the aforesaid reasons, we set aside the impugned order and allow this appeal by way of remand directing the Commissioner of Central Excise to pass a fresh order of adjudication, after giving the party a reasonable opportunity to produce additional evidence and after examining all evidentiary materials on record. Needless to say that they should be given a reasonable opportunity of being heard also. 8. The appeal stands allowe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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