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2015 (12) TMI 1444 - CESTAT ALLAHABAD

2015 (12) TMI 1444 - CESTAT ALLAHABAD - TMI - Duty demand - Determination of annual capacity of production - Demand of differential duty - penalty under Rule 96ZP (3) - Held that:- No case of deliberate default is made out against the appellant. I also hold that the differential duty became payable only on pronouncement of the order of the Hon'ble Supreme Court dated 06.07.2011. It is admitted fact that the appellant paid the differential duty (50% was paid during pendency of appeal and the bala .....

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of the' adjudicating authority - Decided partly in favour of assessee. - Ex. Appeal No. 53479/14 - Dated:- 26-10-2015 - Anil Choudhary, Member (J) For the Appellant : Mr Rinki, Adv For the Respondent : Shri V K Shastri, AC (AR) ORDER Per Anil Choudhary, AM The Appellant, M/s Avadh Alloys Pvt. Ltd., is in Appeal against Order-in-Appeal No. 170-CE/APPL/MRT-I/2013 dated 17.12.2013 passed by Commissioner of Central Excise (Appeals), Meerut I. 2. Brief facts are that the appellants are engaged in the .....

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unit was fixed at 7368 MT. As permissible under Rule 4 (2) of the Hot Re-Rolling Steel Mills Annual Capacity Determination Rules, 1997, the appellants revised the parameter (determining factors) under permission granted by the ld.Commissioner pursuant to which vide Order dated 19.08.1998/29.10.1998, the ACP was re-determined on 1968 MT, but in view of the provisions of Rule 5, which provided that in case the annual capacity determined by the formula in Rule 3 (3) in respect of a mill, is less th .....

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. The revised capacity was determined at 2180 MT per annum. However, in terms of Rule 5 (as introduced vide Notification 45/97-CE dated 30.08.1997) annual capacity was retained 4641 MT per annum based on the actual production for the year 1996-97. The appellants challenged both the orders determining ACP before this Tribunal and this Tribunal in Appeal No.E/204/99-NB being Final Order No.A/457/99-NB (DB) dt. 03.06.1999 and Appeal No.E/1571/99-NB being Final Order No.A/56/2000-NB (DB) dated 06.01 .....

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tion vide Order dated 19.02.2007. Thereafter, the Revenue preferred an appeal before the Hon'ble Supreme Court. In a bunch of appeals decided together vide order dated 06.07.2011, the issue was decided in favour of the Revenue, where the Hon'ble Apex Court held that as the formula is prescribed for determination of capacity given in Rule 3 (3) and the same is referred in Rule 5, thus, where the actual production is higher, for the financial year 1996-97 in comparison to the ACP determine .....

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.99 Rs.1,25,817/- 4. V(30)Dem/251/99 31.08.1999 April.99 to July.99 Rs.2,45,100/- 5. V(30)Dem/371/99 31.12.1999 Aug.99 to Nov.99 Rs.2,45,100/- 6. V(30)Dem/103/2000 19.04.2000 Dec.99 to March,2000 Rs.2,45,100/- Total Rs.12,10,153/- 5. Vide OIO dated 27.02.2013, all the afore-mentioned show-cause notices were adjudicated in terms of Order dated 06.07.2011 and differential duty of ₹ 12,10,153/- was demanded along with equal amount of penalty under Rule 96ZP (3) of the Central Excise Rules, 19 .....

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statute and this Tribunal has decided in their favour as well as the Hon'ble High Court is in favour of the assessee. The issue remains sub-judice and the findings of the Final Order of the Hon'ble Apex Court dated 06.07.2011, are in favour of the Revenue. In this view of the matter, no penalty is excisable. The ld.Counsel draws my attention that the provisions of Section 3A, are deleted in March, 2001 by the Act 14 (1), 2001 w.e.f. 11,05.2001. It is further pointed out that there being .....

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re was no question of interest and penalty imposable on the appellant. 7. The ld.DR relies on the impugned order and also relies on the ruling of the Hon'ble Madras High Court in the case of Triveni Alloys Ltd. Vs. CESTAT, Chennai, wherein it has been held that in case of manufacture of re-rolling steel under similar facts and circumstances, annual capacity was fixed and the appellant failed to discharge the duty liability. Therefore, show-cause notice was issued demanding payment of differe .....

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