Customs, Excise and Gold Tribunal - Delhi
Stag Steel Ltd. vs Commissioner Of Central Excise on 29 April, 1998
Equivalent citations: 1998(101)ELT299(TRI-DEL)
ORDER P.C. Jain, Member (T)
1. In both these cases, the Commissioner of Central Excise have after initial determination of capacity under Sub-section (2) of Section 3A of the Central Excise Act, 1944 have determined the capacities and liability of the applicants herein on the basis of certain data as verified by their officers. It is against the subsequent orders that the applicants herein have filed the appeals contending that the adjudicating authority has re-determined the liability without giving any opportunity for hearing, without giving any verification report or any material on the basis of which re-determination has been done by the Commissioner and without giving any opportunity to the applicants to produce their evidence in support of actual production. The learned Advocate for the applicants, Shri R. Santhanam has, therefore, urged that the impugned orders have been passed in gross violation of principles of natural justice. He further submits that in both these cases, the appellants have been pursuing the concerned Commissioners persistently for re-determination of their liability on account of closure of one furnace or the other on the basis of their actual production but to no effect. It is for these reasons that they have run to the Tribunal and have filed the appeals. He, therefore, prays that the impugned orders be set aside and the concerned Commissioners be asked to re-determine the liability on the basis of the evidence adduced by the applicants/appellants. Correspondingly, any evidence on which the Commissioners want to base their conclusion, the evidence should be disclosed to the appellants and then a regular appealable order should be issued by the Commissioner.
2. Opposing the contentions, the learned JDR, Shri S. Srivastava submits that in the case of M/s. Stag Steel Ltd. the Commissioner has re-determined the annual capacity and consequently, liability of the applicant on the basis of the applicants' own declaration and therefore, no fault should be found with the determination of the Commissioner. Similarly, in the second applicants' case i.e. M/s. Bhundelkhand Alloys (P) Ltd., the Commissioner had determined the annual capacity on the basis of crucible capacity but later on, in view of the changed Notification No. 33/97-C.E., the capacity was based on the furnace capacity, since in the present case, the furnace had two crucibles, therefore, the furnace capacity consequently doubled itself and hence, determination by the Commissioner.
3. Opposing the contentions in his rejoinder, the learned Advocate, Shri R. Santhanam submits that so far as the first applicant is concerned, the applicant had been consistently reminding the Commissioner that two furnaces have never been operated. Once furnace has been closed while, other has been operated under due intimation to the Commissioner with copies to the lower Central Excise Officers. As regards the second applicant, the learned Advocate submits that re-determination by the Commissioner does not disclose any material on the basis of which re-determination has been made. On the other hand, actual production of the applicant is found to be lower than what has been re-determined. Therefore, in terms of provisions of Sub-section (4) of Section 3A, Commissioner is duty bound to take into account the evidence of the applicants and pass a suitable order in accordance with principles of natural justice.
4. We have carefully considered the pleas advanced from both sides. We agree with the submissions of the learned Advocate, Shri R. Santhanam that the impugned orders have been passed herein by the concerned Commissioners without following the principles of natural justice in the facts and circumstances so the case as set out above. Consequently, we set aside the findings in the impugned orders and direct the Commissioners to re-determine the duty liability strictly in terms of the provisions of Sub-section (4) of Section 3A. Since the appeals themselves have been allowed, stay petitions get disposed of.