Customs, Excise and Gold Tribunal - Calcutta
Kamper Concast Ltd. And Jmd Alloys Ltd. vs Cce on 7 July, 2003
Equivalent citations: 2003(89)ECC349
ORDER Archana Wadhwa, Member (J)
1. All the ten appeals, three filed by M/s. Kamper Concast Ltd. and M/s. JMD Alloys Ltd. and seven appeals filed by the Revenue against the same impugned orders are being taken up together by us inasmuch as the issue is identical.
2. The impugned order has been passed in de novo proceedings when the matter was earlier, remanded to him with directions to re-quantify the appellants' duty liability in terms of the actual production under the provisions of Section 3A(4). The appellants' contention is that the Commissioner has again determined their duty liability on the basis of the annual capacity of production by rejecting their claim of actual production made by them on the basis of the RG-1 register and RT-12 returns. Shri Santhanam, Ld. Adv. appearing for both the appellants submit that in identical situation of other appellants similarly situate the Tribunal has once again remanded the matter to the Commissioner for determining their duty liability on the basis of the actual production. In support he places reliance upon the Tribunal's decision in the case of M/s. Ganesh Foundry & Castings Ltd. v. CCE, Patna being Order No. A-199-202/KOL/2003 dt. 20.2.2003. He also draws our attention to the Delhi Bench's decision of the Tribunal in the case of M/s. Dina Metals Ltd. being Final Order No. A-124-125/2003-NB.dt.7.3.2003 wherein the matter was once again remanded to the Commissioner to adjudge the actual production of the appellants and confirm the duty liability accordingly.
3. After hearing Shri A.K. Mondal, Ld. SDR, we find that the Tribunal in the above referred case of Dina Mentals has observed as under:
"7. The Appellate Tribunal, vide Final Order No. A-408-409/KOL/2002 dt, 2.4.2002 remanded the matters of both the Appellants for fresh decisions in the light of the observations made in S.G. Multicast case. The learned Departmental Representative has emphasized and we agree with him that under Sub-section (4) of Section 3 A it is the Commissioner of Central Excise who has to determine the actual production and redetermine the amount of duty payable by the assessee. He has also contended that it flows from the language of Sub-section (4) that the figures of RG 1 /RT12 returns are not to be accepted as the figures of actual production. These cannot be a dispute with this legal proposition. But it does also not flow from the provisions of Sub-section (4) of Section 3A that the Commissioner can determine the production again on the basis of the Rules framed for the determination of Annual Capacity of Production. The Commissioner, as per sub-section, has been given discretion to determine the actual production, after giving an opportunity to the assessee to produce evidence in support of his claim. It has been contended by the learned Advocate for the Appellants that they had submitted RG-1 register and RT-12 returns in support of their claim that their actual production was lower than the production determined by the Commissioner under Sub-section (2) and the same have been rejected by the Commissioner who had not directed them to produce any other record. It is well settled that any discretion vested in any authority has to be exercised judiciously. The Commissioner, in our view no doubt is the only authority to determine the actual production and if he is not satisfied with the figures of production mentioned in RG I register and RT 12 returns, he can conduct such enquiry as deemed fit by him. He can ask the Appellants to produce any other document, evidence or records maintained/submitted in pursuance of any other laws and determine the actual product. The Adjudicating Authority has not advanced any reason for disregarding the figures submitted by the Appellants except mainly referring to the reasons which led to the enactment of Section 3 A of the Act. We are, therefore, constrained to remand both the matters to the Adjudicating Authority to determine the actual production on the basis of evidence which may be adduced by both the sides."
4. In terms of the above order we set aside the impugned orders in both the cases and remand the matter to the Commissioner for determining the actual production of the appellant and affixing their duty liability accordingly.
5. As regards the appeals filled by the Revenue Ld. Adv. Shri Santhanam submits that the same are against that portion of the order vide which the Commissioner has allowed them abatement. He submits that when earlier the matter was remanded, the abatement was allowed in that order also by the Commissioner and no appeal was filed by the Revenue. As such in de novo proceedings the adjudicating authority has again quantified their duty liability by extending their benefit of abatement. In these circumstances the Revenue cannot challenge the present order of the Commissioner when the earlier order had become final in respect of abatement, having not been challenged by the Revenue. As we have already remanded the main appeal filed by the assessee, we remand the appeals of the Revenue also to the Commissioner, who would decide both issues together in the light of the submissions made by the appellants as recorded above. All the ten appeals are allowed by way of remand.