TMI Blog2011 (4) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... d as they are ultra vires Section 3A of the Act - in favour of assessee. - E/365, 366 & 367/04 - - - Dated:- 27-4-2011 - Mr. B.S.V. Murthy, Mr. Ashok Jindal, JJ. Shri.Manish Mohan, SDR for appellant Shri.M.H.Patil Sachin Chitnis, Advocates for respondent Per: Ashok Jindal 1. These appeals are filed by the Revenue. The facts of the case are under:- 1.1 M/s.New Era Fabrics Ltd., are engaged in the manufacture of excisable goods falling under Chapters 52, 54, 55 of CETA, 1985. The assessee being an independent processor as defined under Explanation I of Rule 96ZQ of CER 1944 was covered by the provisions of HASITPACD Rules, 1998 2000 and Section 3A of CEA 1944. The assessee had filed a declaration under Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T. The Commissioner of Central Excise, Mumbai-IV vide his letter F.No.V(55)30/11/T1/98 dated 11/10/99 determined the total number of Hot Air stenters installed in the factory for the year 1998-99 as five and the number of chambers as 32.72 and for the year 1999-2000 as four stenters containing 28.72 chambers (21 chambers + 7.72 on account of Rollers, Cylindrical dryers, Cooling Zone, closed space, exhaust space) with compounded levy of Rs.1.5 lakhs per chamber per month. 1.3 Consequent upon the dismantling of Primatex FS 600 Sl.No.87603 Stenter on 30.07.1999 and subsequent dismantling of Harish Supra 7 Stenter on 23.09.1999 the Commissioner of Central Excise, Mumbai-IV vide his letter F.No.V(55)30/11/T1/98 dated 25/05/2000 determined th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority and the first appellate authority set aside the adjudication order. Aggrieved by the same, the Revenue is in appeal. 3. The Ld. Advocate for the respondents submitted that Notification No.42/98-CE (NT) dated 10/12/98 was ultra vires the provisions of the Central Excise Act, 1944, since as contemplated under the statutory proviso in Section 3A of the Central Excise Act, the Notification No.42/98-CE(NT) contains various factors based on which the annual production capacity is to be determined. Therefore, the show-cause notice is not maintainable. To support his contention he relied on the decision in the case of UOI Vs. Beauty Dyers in W/P No.2366 to 2369 of 2002 vide order dated 18/07/2008, which was confirmed by the Hon ble ape ..... X X X X Extracts X X X X X X X X Extracts X X X X
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