TMI Blog2014 (12) TMI 1080X X X X Extracts X X X X X X X X Extracts X X X X ..... lant’s representation that the other furnace has never been operated and is lying idle. But no final order was passed. Thus, the department’s action of recovery of differential duty is without any basis. Even if this matter is remanded for re-determination of capacity of production and their duty liability, in view of the judgment of the Hon’ble Gujarat High Court in the case of Krishna Processors (2012 (11) TMI 954 - GUJARAT HIGH COURT), the proceedings for recovery of differential duty, if any, cannot be initiated - order of the department demanding the differential duty is set aside - Decided in favour of assessee. - E/57580/2013-EX(DB) - Final Order No. A/51465/2014-EX(DB) - Dated:- 14-3-2014 - G. Raghuram, President and Shri Rakesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment demanded the differential duty and when the appellant did not pay the same, their goods were detained. The appellant filed a writ petition No. 4953/1999 before the High Court at Bilaspur challenging the department s action. The writ petition was decided by the Hon ble High Court vide Final Order dated 13-8-2012 by which the Hon ble High Court directed the appellant to avail the remedy of filing appeal to the Appellate Tribunal of Section 35B within one month from the date of the order. Accordingly, in pursuance of the order of Hon ble High Court, this appeal has been filed. Against this order dated 21-1-1998 along with stay application. 2. Heard both the sides. 3. Though this matter was today listed for hearing of the stay applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been omitted w.e.f. 11-5-2001 and Rules 96ZO, 96ZP and 96ZQ of the erstwhile Central Excise Rules, 1944 have been omitted w.e.f. 1-3-2001 without any saving clause, in view of the judgment of Hon ble Gujarat High Court in the case of Krishna Processors v. Union of India - 2012 (280) E.L.T. 186 (Gujarat), no proceedings for recovery of duty can be initiated and no demand against the appellant would survive. 5. Shri Yashpal Sharma, ld. Departmental Representative defended the impugned order by reiterating the findings of the Commissioner. 6. We have considered the submissions from both the sides and perused the records. 7. The appeal has been filed against the Commissioner order dated 21-1-1998 determining the annual capacity o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the appellant had informed the department from the very beginning that they are operating only one furnace w.e.f. 1-3-2001 and other furnace of 1.00 M.T. capacity is idle, and when initially the duty liability had been determined provisionally on the basis of both the furnaces being operational, the Commissioner should have passed a final order determining their annual capacity of production after considering the appellant s representation that the other furnace has never been operated and is lying idle. But no final order was passed. Thus, the department s action of recovery of differential duty is without any basis. Even if this matter is remanded for re-determination of capacity of production and their duty liability, in view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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