9911796707
TMI Blog2015 (3) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... Mills Annual Capacity Determination Rules, 1997" and fixed the amount payable as Rs. 5,68,875/- per month vide sub rule (4) of Rule 3 read with Rule 5 of the said Rules and finalised vide Commissioner's order dated 26-03-1998. * The validity of said Rule 5 was challenged by various manufacturers including the Mis. United Metal Industries before the court of law. They claimed that ACP as per Rule 3 of the said Rules, the duty liability was only Rs. 1,90,331/-and were paying the same. * A Show Cause Notice was issued in this regard and an Order-in-Original bearing No. 3-7/2003 dated 27-03-2003 was passed by the Commissioner wherein a duty liability of Rs. 1,17,84,627/- was confirmed against the said manufacturer and penalty of Rs. 1,17,84,627/- was imposed. M/s. United Metal Industries filed an appeal before the Hon'ble CESTAT and the same is pending as on date Notwithstanding the above, they had paid the duty liability of Rs. 1,17,84,627/- and amount of Rs. 61,55,326/- only was paid towards interest and Rs. 29,33,716/- was only paid towards penalty as per Madras High Court order in CMA 2769/2005 dated 23-03-2007. 2.1 Originally, M/s. Goyal Metal Industries (P) Ltd., the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 dt. 05-08-2005 862707 Total 93,64,181/- 2.6 On review of the said Orders-in-Original the Commissioner directed the ACCE to file an application before the Commissioner (Appeals) for setting aside the above stated Order-in-Originals. 2.7 The assessee filed an appeal against another.Order-in-Original No. 06/06 dated 30-03-2006 (involving rejection of refund claim of Rs. 1551500/-) before Commissioner (Appeals). 2.8 The above said two appeal one filed by department and other by party were decided by the Commissioner (Appeals) vide Order-in-Appeal No. 52/2007 (M-1) and 06/2007 (M-I) (D) both dated 31-07-2007, wherein the matter was remanded to Original authority for deciding the issue afresh as soon as main issue attains finality. 2.9 Aggrieved by this Order-in-Appeal the assessee filed a revision application before the GOI. The GOI vide their Revision Order No. 870/10-CS dated 24-05-2010 set aside the Order-in-Appeal No. 52/2007 (M-I) and 06/2007 (M-I) (D) dated 31¬07-2007, and directed the Commissioner (Appeals) to decide the case on merit and not to keep the case pending indefinitely. 2.10 Based on this direction of GOI Commissioner (Appeals) has now passed Orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted payment of duty can be considered as payment in full only when the duty is paid along with interest. The fact remain that Mis. United Metal Industries appeal before CESTAT's larger bench is pending in E/1389/04 and E No 354/03 and also an appeal before Hontle Supreme court challenging the fixation of ACP under rule 5 of Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997 has not reached finality. 4.2 The duty has not been discharged by the manufacturer, M/s. United Metal Industries at the time of clearance as required under Rule 19 of Central Excise Rules, 2002 and connected instructions issued therein but only as per. Hontle Madras High Court order in CMP No 2769/2005 and filed the refund claim. In such cases, no claim of refund can be filed under section 11B as the issue still to be decided by the higher appellate forum. 4.3 Without prejudice to the above, on consideration of the applicability of rebate @ 12% of FOB in terms of Notification No. 31/98-CE (NT) dated 24-08-98, it is seen that the period covered in OM Nos. 24/2006, 25/05, 26/05, 26/05 and part amount of OM No 27/05 were prior to the issue of Notification No 31/98 dated 24-08-98. But the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal passed by CCE. The revisionary authority in its GOI Revision order No. 60-67/04 dated 29-03-2004 had held as under:- " From the perusal- of-the record, Govt observes that the-dispute_before CESTAT Chennai is whether ACP of the manufacturer shall be determined under Rule 3 or Rule 5 of the "Hot Rerolling Mills Annual Capacity Determination Rules, 1997". The manufacturer has subsequently paid the entire duty amount involved in this case 'though the applicant has obtained stay from Ronde CESTAT against recovery of duty and penalty The revisionary authority vide its order no 60-67/2004 dated 29.3.2004 had held as under "During the course of personal hearing, the applicant has stated the view that without prejudice to their main pleadings of their claims being rightful despite being more than duty actually paid, they will in any case be entitled to full rebate as claimed in terms of Board's Circular Na 418/51/98-CX dated 2.9.98 as and when duty as determined by Commissioner's Order as per relevant rule is fully paid by the manufacturers. Govt. finds force and concurs with the view of the applicant in view of the self explanatory and clarifactory portion of CBEC Circul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notification No. 42/94-CE (N.T.) dated 22.9.94 in case of export to Nepal. However after the goods were notified under section3A, the identification of the duty paid on exports became difficult, the said notifications were issued which simply provide a formula to ascertain the duty content on the export and other usual procedures. These notifications neither create a right nor affect the pre-existing right to avail the rebate of duty. Hence, the said notifications are not hit by the principles of retrospectivity. On the identical issue concerning rebate of duty paid under section 3A on processed textile fabrics, the decision of the Board, based on the opinion of the Ministry of Law, Justice & Company Affairs, has already been communicated by Circular No. 462/28/99-CX dated 21.6.99. 3. In view of the above legal position, the Board has decided that the exporters of the said goods will be entitled for rebate under rule 12 of the Central Excise Rules in respect of said goods cleared from the factory of independent manufacturers and exported during 1.8.97 (inclusive to 23.8.98 and the formula for computation of rebate and other procedures prescribed in the said notifications should b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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