Customs, Excise and Gold Tribunal - Tamil Nadu
Shanthi Alloys vs The Commissioner Of Central Excise, ... on 17 October, 2001
JUDGMENT
S.L. Peeran
1. The short issue that requires for consideration in this matter is as to whether the appellant's claim for abatement could have been determined in terms of Rule (3) of Induction Furnace Annual Capacity Determination Rules of the annual capacity fixed based on their declaration dated 26.8.97. Appellants had filed an application before the authority seeking abatement of duty for various periods on the ground that their factory had been closed during those periods. However, their application was belated and the Commissioner did not accept their claim and confirmed the demands.
2. Appellant's grievance is that the whole notification N. 44/97 dated 30.8.98 has been stayed by the Hon'ble Delhi High Court in the case of SUPREME STEEL AND GENERAL MILLS reported in 1997 (23) RLT 231. In this case, the revenue has filed appeal before the Apex Court and the Apex Court has not granted stay of the operation of the Delhi High Court judgment. However it has given direction that the authorities shall implement and recover the duty only on the basis of actual production. Appellant contends that in the present case also in terms of Delhi High Court judgment and the Apex Court's order, they are required to pay only duty on the actual production and the recovery for non-working days has been stayed and therefore it cannot be implemented till such time as the Apex Court as well as the Delhi High Court decides the issue. It was brought to our notice of the Commissioner that the Tribunal in the case of HANDUM IRON & STEEL ENTERPRISES v. CCE & CUSTOMS, Hyderabad reported in 1999 (34) RLT 916 (CEGAT) had remanded the issue for de novo consideration with the direction to await both the judgments of Hon'ble Courts and has notification No. 44/97-CE (NT) dated 30.8.97 has been stayed and no proceedings can be initiated except for recovery on the basis of actual production. It is contended that the Ld. Commissioner has not taken into consideration the Tribunal's cited judgment and has proceeded to reject their claim confirm the order. Hence this appeal.
3. Head Shri V. Balasubramaniam who reiterated the above submissions and sought for remand of the matter with a direction to the Commissioner to await the Hon'ble Delhi High Court and the Apex Court's judgments in the case of SUPREME STEEL AND GENERAL MILLS (supra) as directed by the Tribunal in the case of HANDUM IRON & STEEL ENTERPRISES LTD (supra).
4. Ld.DR submits that as there was belated filing of application, they were not entitled for deduction and therefore the Ld.Commissioner was justified in rejecting their claim. However, the Ld.Commissioner has not adverted to their plea for keeping the matter in abeyance. He leaves the matter to the discretion of the Bench.
5. On a careful consideration of the submissions, we notice from para-6 & 7 of the order of the Tribunal in HANDUM IRON & STEEL ENTERPRISES LTD (supra) that the matter has been remanded in that case for de novo consideration with a direction that the Commissioner shall await the judgments of both the Courts before taking a decision in the matter. The said para-6 & 7 of the above noted judgment are reproduced herein below :-
6. On a careful consideration of the submissions, we find that in the case of Supreme Steels & General Mills supra, the Hon'ble Delhi High Court in its interim judgment has clearly stayed the operation of the Notification No. 44/97-CE (NT). The effect of this order is that the operation of the Rule 96ZP (3) is stayed. The order-in-original impugned has held that since appellants had opted for the procedure under this sub-rule, therefore their application for abatement of duty payable on days of closure in terms of Section 3A cannot be considered. However, we find that the order impugned has erred in this behalf inasmuch as that once the sub-rule itself has been stayed by the Hon'ble Delhi High Court, therefore the Ld. Commissioner was not having the legal authority to have taken such a view on the applicability of the Rule 96ZP(3)
7. We have also perused the order dt. 21.4.98 of the Hon'ble Supreme Court of India in this matter. We find on a plain reading that Hon'ble Apex Court has not stayed the operation of the interim order of the Hon'ble Delhi High Court as far as Notification No. 44/97 is concerned. On the contrary, the Hon'ble Apex Court has directed that if manufacturers submit applications for assessment on the basis of actual production", same shall be considered as per law. This is exactly the subject matter of this appeal before us inasmuch as that appellants had submitted an application for deducting those period (of 7 days or more) where the factory had remain closed and therefore the average production for this period needed to be deducted at arrive at the deemed actual production. However, the order impugned had denied this request and instead confirmed the duty demand. Therefore, it is our considered opinion that since the said interim judgment of the High Court has not been stayed by the Hon'ble Supreme Court, it continues to be operative and thus the position obtained is that operation of Rule 96ZP (3) remands stayed. Under these circumstances, we find that interest of justice requires that order-in-original impugned is set aside and the matter remanded tot he original authority for reconsideration in terms of the said judgment of Hon'ble Delhi Court read with the judgment of the Hon'ble Supreme Court noted supra. Ordered accordingly.
6. In view of our above observation, the impugned order is set aside and matter remanded to the original authority with a direction that the ld.Commission shall await the judgments of both the Hon'ble Courts and thereafter take a decision after granting personal hearing to the appellants. Appeal is allowed by remand.
(Pronounced & dictated in Open Court)