TMI Blog2002 (7) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 35F of the Central Excise Act, 1944 and the subsequent order dated 14-5-2002 dismissing the petitioner's appeal for non-compliance of the provisions of Section 35F of the Act as the petitioner did not deposit the amounts as per the aforesaid orders. 3. The controversy arising in this petition lies in a very narrow compass and involves interpretation of the provisions of Hot Re-Rolling Steel Mills Annual Capacity Determination Rules, 1997. The said rules were framed pursuant to the insertion of Section 3A in the Central Excise Act, 1944 levying compounded duty on the basis of the annual capacity of the production of a factory, if such goods are manufactured or produced with the aid of hot re-rolling mill. Rule 3 of the afo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of rolling' referred to in sub-rule (3) of rule 3, such manufacturer shall intimate about the proposed change to the Commissioner of Central Excise in writing, with a copy to Assistant Commissioner of Central Excise, at lest one month in advance of such proposed change, and shall obtain the written approval of the Commissioner before making such change. Thereafter the Commissioner of Central Excise shall determine the date from which the change in the installed capacity shall be deemed to be effective. 5. In case, the annual capacity determined by the formula in sub-rule (3) of rule 3 in respect of a mill, is less than the actual production of the mill during the financial year 1996-97, then the annual capacity so determined shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices issued by the Superintendent of Central Excise (Annexure C Colly) calling upon the petitioner to pay excise duty on the basis that the annual capacity of the production (APC) for the year 1998-99 was 2595 MT as against the annual capacity of production (APC) as assessed by the petitioner at 971.40 MT. The petitioner contested the said show cause notices but the Deputy Commissioner of Central Excise confirmed the duty as demanded in the show cause notices on the basis of the interpretation placed on the aforesaid rules, by holding that the actual production in the year 1996-97 had to be taken as the minimum APC in any case. 6. The petitioner went in appeal. As far as the petitioner's application for stay is concerned, the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g provision contained in Rule 5 in such a case would be grossly unjust. It would be also impermissible, as such a determination would be without any regard to the annual capacity of production, the basis for the compounded levy. However, the situation is quite different when the modification of the machinery is to augument the annual capacity of production. 9. From a perusal of our previous decisions, we find that all of them related to cases involving reduction of capacity of production on account of change in the machinery. In those circumstances, the Tribunal held that Rule 5 had no application to those cases. Those decisions cannot constitute the basis for the contention that Rule 5 is wholly inapplicable irrespective of whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ECG Application No.41 of 2001 and in another group of applications being CECG Application Nos.6 to 16 of 2002. This Court rejected those applications, inter-alia, observing that on going through the order of the Tribunal, no question of law can be said to be arising from it which required a reference to the High Court for its opinion. Similarly, CECG Application Nos.6 to 16 of 2002 also came to be dismissed by this Court's order dated 11-1-2002. 11. This Court has recently also rejected reference applications arising from orders of CEGAT following the aforesaid larger bench decision. 12. In view of the aforesaid pronouncements of this Court declining to grant the reference applications preferred by the revenue, it is obvious that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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