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TMI Blog2015 (6) TMI 1047X X X X Extracts X X X X X X X X Extracts X X X X ..... of CETA-1985. Duty on the said hot rolled products is payable under Rule 96 ZP of the erstwhile Central Excise Rules 1944, which came into effect on 01.09.1997. The said rule specifies the products, which are required to discharge the duty liability on the basis of annual production capacity determined by the Commissioner. According to sub-rule (1) of Rule 96 ZP, a manufacturer of non-alloy steel hot rolled products is required to debit an amount, calculated at the rate of 400 per M.T. at the time of clearance of the specified products from his factory, in the account current, maintained by him under rule 173 G of the erstwhile Central Excise Rules, 1944. Sub-rule (2) of the said rules stipulates that where a manufacturer does not pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capacity of the mill within 10 days from the date of receipt of the communication. Pursuant to the interim order of the Commissioner, the respondent vide its letter dated 22.12.1997 addressed to the Commissioner, Central Excise, Raipur, interalia, stated that the rolling Mill was closed for the period 28.6.1997 to 12.10.1997 and the information regarding such closure had already been intimated to the Jurisdictional Range Superintendent. The submission of the respondent in the said letter was that since their factory was closed during the above period, the respondent was eligible for abatement as provided in sub-rule (2) of Rule 96ZP. In the said letter the respondent had also informed their intention to opt for the provisions under 96ZP (3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing grounds:- (a) The Commissioner vide order dated 27.01.1998 since had directed the party to pay Central Excise duty amounting to Rs. 94,950/- for each month starting from 01.09.1997, the Commissioner had become functus-officio and was precluded from again considering the matter, as has been done in the impugned order. (b) The issue whether Central Excise duty amounting to Rs. 94950/- is recoverable from the party from the month of September, 1997 has already been decided by the Commissioner (Appeals), Central Excise, Raipur. Thus, the administrative Commissioner is erred in re-adjudicating the issue and allowing abatement of duty payable for the period 01.09.1997 to 09.10.1997. (c) As per the requirement of Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it cannot be said that Commissioner has become functus-officio and he cannot pass further order in determining the final ACP and subsequent determination of the duty liability. The submissions of the ld. Advocate with regard to the second grounds of appeal are that the Commissioner (Appeals) has only decided that he has jurisdiction to entertain the appeal of the appellant and regarding the merits no findings have been recorded in the order passed by him; and thus there is no error in the order dated 23.03.2009. As regards the third ground in the Revenue's appeal, the submission of the ld. Advocate is that since the factory of the respondent was closed during the period from 28.06.1997 to 12.10.1997, and intimation to this effect was filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) Central Excise, Raipur, I find that the issue before the Commissioner (Appeals) was entirely different from the issue adjudicated by the jurisdictional Commissioner by the impugned order while fixing the ACP finally. Hence the order passed by the Commissioner (Appeals) will not have any application/nexus as far as the impugned order is concerned. 11. With regard to the grounds of appeal No. 3 & 4 raised by the Revenue, it is clearly borne out from the records that the respondent had intimated the option for availing of the Scheme on 10.10.1997 under Rule 96ZP (3) of Central Excise Rules, 1944. Therefore, duty is payable under the said sub-rule (3) only with effect from 10.10.1997. In respect of the period 28.06.1997 to 12.10.1997 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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