TMI Blog2008 (2) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... nnual capacity of the production of the processed textile fabrics in respect of the appellant company. This order of re-determination was in pursuance of Tribunal's remand order dated 17-7-2000. 2. Heard both sides. 3. The facts, in brief, are as follows : (a) Based on the declaration furnished by the appellant provisional Order No. dated 30-12-1998 was issued by the Commissioner under proviso to sub-rule (4) of Rule 3 of the Hot Air Stenter Independent Independent Textile Processor (Annual Capacity Determination) Rules, 1998. As per this order the number of chambers installed in the factory was determined as 14.14. Subsequent to verifications final Order No. 62/99, dated 23-8-1999 was passed inter alia holding that the number of chambers installed in the factory as 14.60. (b) The assessee went on appeal against the order of the Commmissioner and Hon'ble Tribunal vide order No. C-I/3351-52/WZB/2000 dated 17-7-2000 set aside the final order No. 62/99 dated 23-8-1999 and remanded the matter to the Commissioner for determination of the capacity after giving the appellant a reasonable opportunity to establish its contention that the gallery should not be taken i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itting of Section 3A of the Central Excise Act, 1944 w.e.f. 11-5-2001. In our opinion, the omission of Section 3A cannot make the orders of the Tribunal a nullity. The order of the Tribunal should be implemented and the Commissioner's order is actually in furtherance of the Tribunal order. If the party has not come in appeal against the final order of the determination of capacity or if the Tribunal has not given an order of remand of the proceedings, the earlier final order dated 23-8-1999 of the Commissioner under Section 3A and the rules made thereunder would have reached finality. If the appellate proceedings are not protected, then it can also affect others who might have paid excess duty and might be seeking relief by way of refund in the proceedings before the Tribunal. 7. The appeal is rejected in the light of the above. (Pronounced in Court on 2-2007) Sd/- (M. Veeraiyan) Member (Technical) 8. [Order per : Archana Wadhwa, Member (J)]. - I have gone through the order proposed by ld. Brother Shri M. Veeraiyan Member (Technical), rejecting the appeal. However, my views on the issues are different and as such a separate order is being recorded. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings thereafter is to be treated as non est. Noting the factual position in that case, it is seen that show cause notice was issued on 27-4-1977, when the said Rule 10 10A was in the statute book. The same were omitted on 6-8-1977. The order on the said show cause notice was passed on 15/27th October 1977. Revision application against the same was dismissed by the Central Government on 25-9-1980. Writ against the same before the Hon'ble High Court was dismissed on 19-11-1984. The said order of the High Court was under challenged before the Hon'ble Supreme Court.From the above factual position, it is seen that except for issuance of the show cause notice on 27-4-1977, all the orders passed i.e. by the Assistant Commissioner; by Central Government and by the Hon'ble High Court was after the date of omission. The question before the Hon'ble Supreme Court was as to whether the proceedings having been initiated before the omission of the said Rules could be continued in law. Hon'ble Supreme Court answered the above question in negative. For better appreciation I reproduce para 38 of the said judgment. The position is well known that at common law, the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf. Appeal is thus allowed with consequential relief to the appellants. Sd/- (Archana Wadhwa) Member (Judicial) DIFFERENE OF OPINION 14. Whether appeal is to be rejected as held by Hon'ble Member (Technical) or the same is to be allowed as held by Member (Judicial). Sd/- (M. Veeraiyan) Member (Technical) Sd/- (Archana Wadhwa) Member (Judicial) 15. [Order per : M.V. Ravindran, Member (J)]. - This difference of opinion between the Members is listed before me for resolving the issue. 16. The Hon'ble Member (Technical) has come to the conclusion that the appeal filed by the appellant is liable to be rejected even if the provisions of Section 3A of the Central Excise Act, 1944 were omitted from the statute, while Hon'ble Member (Judicial) has come to the conclusion that on the date of passing of the adjudication order, the learned Commissioner had no provisions under which the same can be passed. 17. Heard both sides at length and perused the records. 18. It is the submission of the learned Counsel appearing for the appellant t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ana Metals Steels (supra) has been stayed by the Hon'ble High Court of Madras as reported in 2007-TIOL-573-HC-MAD-CX. It is the submission of the authorized representative that despite such stay, the precedential value of the decision is not lost. 20. On perusal of the difference of opinion that has arisen between the Members, I find that Hon'ble Member (Judicial) has held that the provisions of Section 3A having been omitted and not in existence, the Commissioner has no power or authority to pass the order and the said impugned order is without any jurisdiction. The Hon'ble Member (Technical) is of the view that de novo adjudication proceedings in pursuance of the specific remand order of the Tribunal, which was much before the omission of Section 3A of the Central Excise Act, 1944 was correct and the Commissioner has adjudicated the matter correctly. 21. In order to come to the conclusion and resolving the difference of opinion, it is necessary that current impugned order has to be read and I may read so :- 7. Now as per the order of the Hon'ble CESTAT and in line with the decision of the Hon'ble Supreme Court in case of Commissioner of C.E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Air Stenter Independent Textiles Processors Annual Capacity Determination Rules, 1998. 22. It can be seen from the above reproduced portion of the adjudicating authority's order, the adjudicating authority has proceeded ahead in the determination of annual capacity of the appellant as provided under clause (a) of Rule 3(3)(iv) of the Hot Air Stenter Independent Textiles Processors (Annual Capacity Determination) Rules, 1998. The provisions of Rule 3 of Hot Air Stenter Independent Textiles Processors (Annual Capacity Determination) Rules, 1998 was introduced by Notification No. 42/1998 by the powers under Section 3A of the Central Excise Act, 1944. The specific provisions i.e. Rule 3(3)(iv) reads as under :- 3. The annual capacity of production referred to in Rule 2 shall be determined in the following manner, namely :- (1) ............................ (2) ............................. (3) The annual capacity of production of processed textile fabrics specified in Rule 2 in respect of a factory of an independent processor shall be determined keeping in view the following factors, namely :- (i) .................... (ii) .................... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven by the Central Government that too without any basis. 13. As rightly submitted by learned Counsel all chambers irrespective of the nature, age and their capacity cannot be treated equally for the purpose of fixing the annual capacity of production, as the same has been done under Notification No. 42/1998. The rules framed under Notification No. 42/1998 is not having acceptable method to arrive at the capacity of production, which is absolutely necessary to levy and collect duty of excise under Section 3A of the Act. So, the said rules cannot be adopted for determination of excise duty as they cannot level the correct capacity of production of the factory for the purpose of levying excise duty. So, the Rule 3 of the rules issued in the Notification No. 42/1998 cannot be sustained as they are ultra vires Section 3A of the Act. 14. The Order rules issued under other Notifications which are impugned in the other writ petitions are only based on the rules issued in Notification No. 42/1998 and so the reasoning given above will apply to these rules also. So they also cannot be sustained consequently, they are set aside. But the petitioners are liable to pay duty of excise und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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