TMI Blog2015 (6) TMI 1047X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.10.1997 as the factory was closed, the respondent is eligible for abatement under sub-rule (2) of Rule 96 ZP, as rightly held by the Commissioner in the impugned order. - Decided against the revenue - Excise Appeal No.E/2911/2009 EX. [SM] - Final Order No. 53896/2015 - Dated:- 2-6-2015 - MR. S.K. MOHANTY, MEMBER (JUDICIAL) For the Appellant : Shri R.K.Mishra, DR For the Respondent: Shri V.K. Puri, Advocate ORDER PER: S.K. MOHANTY The instant appeal is filed by the Revenue against the order No.22/Sec. 3A/Commr/2009 dated 23.03.2009 passed by the Commissioner, Central Excise, Raipur (C.G.). 2. Brief facts of the case are that the respondent herein is engaged in the manufacture of Hot Rolled products of non-al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent was closed during the period from 28.06.1997 to 12.10.1997. Before re-start of production, the respondent on 10.10.1997 exercised option to operate under Rule 96 ZP (3) and, accordingly, filed the application before the Jurisdictional Central Excise Authority. 4. Pending verification of the information furnished by the respondent, vis-`-vis determination of annual capacity of production, the Jurisdictional Commissioner of Central Excise vide letter dated 20.10.1997, determined the annual production capacity provisionally and called upon the respondent to pay duty of ₹ 94,950/- by 10th of each month during the period 1997-1998. In the said letter, the Commissioner also informed the respondent that they can make repres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.03.2009, wherein the annual capacity of production for the period 1997-98, 1998-99 and 1999-2000 was determined at ₹ 3,798 MT, which was same as earlier determined in the provisional ACP. In the said order the duty liability for the period from 01.09.1997 to 09.10.1997 was fixed at ₹ 1,62,325/- under Rule 96 ZP ( 1 2) of the erstwhile Central Excise Rules, 1944. However, the said duty liability was abated, in view of the fact that the factory of the respondent was closed during the above period, and the respondent opted to avail the scheme under Rule 96 ZP (3) w.e.f.10.10.1997. Feeling aggrieved with the abatement provided in the adjudication order (for short referred as impugned order) dated 23.03.2009, the Revenue- appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Industries v/s CCE, Nagpur reported in 2006 (201) ELT 150 (Tri. Mum.) 7. Shri V.K. Puri, ld. Advocate appearing for the respondent submits that the grounds of appeal in the appeal memorandum filed by Revenue are not legal and proper and the impugned order dated 23rd March, 2009 has been passed in conformity with the statutory provisions. With regard to the ground No.1, the submissions of the ld. Advocate is that the communication dated 27.01.1998 by the Commissioner cannot be construed as an order and as such the same is not appealable. In this context, he relies on the decision of this Bench of the Tribunal in the case of G.P. Jaiswal vs. Commissioner of Custom, Lucknow reported in 2008 (226) ELT 707 (Tri. - Del.). Thus, according to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent, it reveals that it is a simple letter, wherein the representation of the assessee regarding annual capacity and duty liability of hot re-rolling mills has been disposed of. The said communication issued by the Commissioner pending final determination of ACP, cannot be considered as an adjudication order. Since the said letter of the Commissioner cannot be construed to be an order, the adjudicating authority does not become functus-officio and. the matter can be adjudicated based on the documentary evidences and representation furnished by the respondent manufacturer subsequently for final determination of ACP. 10. With regard to the ground No.2 in the appeal memorandum that the issue relating to recovery of Central Excise Duty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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