Custom, Excise & Service Tax Tribunal
M/S. Goyal Ispat Ltd vs Cce, Chennai on 22 December, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH AT CHENNAI E/320/2002 (Arising out of Order-in-Appeal No. 70/2002-N II dated 28.05.2002, passed by the Commissioner of Central Excise (Appeals) Chennai). M/s. Goyal Ispat Ltd. : Appellant Vs. CCE, Chennai : Respondent
Appearance Shri K. Mudimannan, Adv., For the applicant Shri K.P. Muralidharan, AC (AR) For the respondent CORAM Honble Shri R. PERIASAMI, Technical Member Honble Shri P.K. CHOUDHARY, Judicial Member Date of Hearing/Decision: 22.12.2015 FINAL ORDER No. 41793 / 2015 Per: R. Periasami Consequent on the Honble High Court of Madras order dated 3.7.2015, the appeal is taken up for denovo.
2. The brief facts of the case are that the appellants are engaged in the manufacture of re-rolled products falling under Chapter sub-heading 7211.11, 7214.90 and 7216.10 of the Central Excise Tariff Act. From 01.09.1997 to 31.03.2000, the clearance of the goods and payment of excise duty is covered under the compounded levy scheme under Section 3A of the Central Excise Act. The Assistant Commissioner in his proceedings dated 29.08.1997 informed the appellant that the Annual capacity production (ACP) has been provisionally fixed at 14091 MT and subsequently vide proceedings dated 12.09.97, ACP was finally fixed at 14187.978 MT. The appellants were directed to discharge duty liability as per sub-rule 3 of Rule 96 ZP of Central Excise Rules, 1944. The Range Superintendent issued SCN demanding duty of Rs.18,13,200/- under Section 11 A of CEA read with Rule 9(2) of CER and the adjudicating authority confirmed the demand. The Commissioner (Appeals) upheld the order and rejected the appeal. On appeal this Tribunal vide Final Order No.77/2009 dated 15.01.2009, upheld the impugned order and rejected the appeal. The appellant filed ROM application and the same was also rejected by this Tribunal vide miscellaneous order No. 146/2009 dated 09.04.2009. Aggrieved by this, the appellants filed CMA before the Honble Madras High Court against both the Tribunals Final order and miscellaneous order. The Honble High Court in their order dated 03.07.2015 in C.M.A Nos. 1698 & 1699/2009 allowed the appeals and set aside both the orders and remanded the matter to the Tribunal for fresh consideration. Hence, the present appeal.
3. The Ld. Advocate appearing on behalf of the appellant submits that the ACP was fixed provisionally, vide order dated 12.09.97 and submits that ACP was fixed by the Commissioner as per the formula given in the Notification No. 32/97-CE-NT dated 01.08.1997 and for the nominal diameter 300 to 350 the value for w was taken as 247 per kg/mtr. and fixed ACP accordingly. He further submits that the said notification was amended vide notification No. 45/97-CE-NT dated 30.08.97, and para-3 of the original notification was modified and for the nominal diameter d the centre distance of diameter between 261 to 310, the value has been modified and reduced to as 1.200 kg/Mtr. from 2.47 kg/mtr. for the parameter w. He drew attention to the verification report at page 19 & 21 nominal centre distance of the diameter for d determined as 300 mm. This has been verified and confirmed by the jurisdictional Superintendent and confirmed. He submits that while fixing ACP, the Commissioner has not taken into consideration the amended Notification No. 45/97, instead computed the ACP based on the original Notification No. 32/97 by taking the value of w as 2.47 kg/Mtr. for the nominal diameter ranging 300 to 350 instead of taking w 1.200 kg/Mtr. for diameter 261 to 310 kg./Mtr. He submits that if the revised notification is accepted and ACP is re-fixed and there is no demand arises. He submits that ACP cases of similar issues have already been remanded vide Tribunals Final Order No. 40241 40263/2015 dated 24.02.2015 and vide Final Order No. 40602/2015 dated 27.05.2015. He pleads to set aside the impugned order and direct the Commissioner to re-fix the ACP as per the amended notification No. 4/97 -NT dated 30.08.97.
4. The Ld. AR reiterates the findings of the adjudicating authority and submits that ACP was finally fixed by the Commissioner as per the order dated 03.04.1998 and the demand was confirmed based on the final ACP correctly by the authority.
5. We have carefully considered the submissions and the short issue in the present case relates to determination of ACP on the re-rolled products manufactured and cleared by the appellants under Section 3 (A). On scrutiny of the provisional ACP order dated 12.09.1997 and the final order dated 03.04.1998, the Commissioner has fixed the quantity as 14187.978 MT. On perusal of the verification report dated 23.09.97 by the jurisdictional range authorities, we find that the value of nominal diameter and other parameters were certified and found correct. We find that at col.2 relating to normal centre distance of the diameter has been confirmed as 300 mm. Whereas at column 7 for w it has been estimated at 2.466 kgs/mtr. as per the notification No. 32/97, which is meant for d purpose for diameter 311 360 mm consequently the higher ACP was arrived resulting to consequential demand.
6. On perusal of the Notification No. 32/97 dated 01.08.97 and the amended notification No. 45/97 dated 30.08.97, the said formula for determination of ACP has been revised for d and w for a normal distance of the diameter (d) of 260 310 mm, w has been revised to 1.200 kg/per meter. It is confirmed from the verification report of the appellants, normal distance is 300 mm. Therefore, it is evident that the appellant falls within the category d 261 to 310 mm and automatically for w applicable is 1.200 kg/mtr. and not 2.466 kg/mtr. In view of the above, and also considering that the Honble Madras High Court in the case of Triveni Alloys Ltd. Vs. Cestat, Chennai 2014 (306) ELT 617 (Mad.) and this Tribunal has already remanded the case under Section 3.
7. In view of the forgoing discussions we hold that revised value of d and w is applicable for the appellant case. Accordingly, the impugned order is set aside and remanded to the Commissioner for re-fixing the ACP by applying the correct formula as per the amended notification No. 4/97 -NT dated 30.08.97, by taking the d and w diameter for 300 mm (d) and 1.200 kg/mtr. The appeal is allowed by way of remand.
(Dictated and pronounced in open court)
(P.K. CHOUDHARY) (R. PERIASAMI)
JUDICIAL MEMBER TECHNICAL MEMBER
BB
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