Prem Steels Private Ltd. Vs. Commissioner of Central Excise

1. in these cases the adjudicating authority has rejected the applications of the appellants for re-determination of their annual capacity of production on actual production basis under section 3a(4) of the central excise act, 1944 for the reason that the appellant has opted for discharge of duty liability in terms of rule 96zo(3).2. on hearing both sides, we find that it has already been held by the tribunal in the case of meenakshi castings reported in 1999 (32) rlt 82 that rule 96zo(3) is in conflict with sub-section 4 of section 3a of the act and it is a settled position that wherever there is conflict between section and the rule, rule never over-rides the section. the tribunal has held that the relief or right granted under the section cannot be taken away by rule. the tribunal has remanded the matter for determination of annual capacity of production on the basis of actual production in terms of section 3a(4). this view of the tribunal has been followed subsequently in a series of cases one among them being in the case of aradhana steel and allied ind. pvt. ltd. and ors. - final order nos. a/233-35/99-nb, dated 15-4-1999 1999 (111) e.l.t. 274 (tribunal).3. since the issue in dispute in this case has already been a subject matter of earlier decision, we follow the ratio of the earlier order holding that the appellant had the option to avail of the benefit of section 3a((4) and in this view of the matter, we dispense with the pre-deposit of duty and stay its recovery and remand the matter to the adjudicating authority for examination of the appellants' claim for determination of acp on actual production basis under section 3a(4) of the act.4. we shall pass appropriate orders in accordance with law after extending reasonable opportunity to the appellants of being heard in their defence. the impugned orders are thus, set aside and the appeals allowed by way of remand.