Umesh Chandra Banerjee, C.J.
1. In these two writ petitions, the petitioners have prayed for issuance of a Writ of Mandamus declaring Rule 97 ZO 3 of Notification No. 27/97, Central Excise (N.T.), dated 25-7-1997 as illegal, arbitrary, unjust, void and violative of Articles 14, 19(1)(g) and 21 of the Constitution of India. The petitioners have also prayed for a direction to the respondents 1 to 3 to levy excise duty on the petitioners by giving credit to the power cut imposed on them by the third respondent and pass such other order as is deemed fit and proper in the circumstances of the case.
2. The contextual facts depict that the petitioners are induction furnaces units engaged in the manufacture of Mild Steel ingots which is otherwise an excisable commodity .The manufacturing process of the petitioners involve melting of mild steel scrap in the furnace by heating with the help of electricity. It is a continuous process and in a day about 10 heats would be required for the purpose of having the furnances work to its optimum level.
3. The petitions record that the petitioners have been paying excise duty on the mild steel ingots on the basis of the actual production. It has been the grievance of the petitioners that recently the Central Government has changed its policy with regard to excise duty and issued a notification under Section 3-A of the Central Excise Act, 1944 which empowers the Central Government to levy excise duty on such goods as may be notified on the basis of the annual capacity of the production of the factory concerned. It is the petitioners' definite case that by reason of the power cut as introduced in the State, the petitioners' optimum level of production is not being readied and as such, the petitioners have not been able to make use of the full capacity of the furnaces. Consequently, 100% production level also cannot be reached since power is chief raw material and has a major impact on the production of mild steel ingots.
4. It is at this juncture, Section 3-A of the Act is apt to be noted. Section 3-A reads as follows :
Section 3-A: Power of Central Government to charge excise duty on the basis of capacity of production in respect of notified goods:-
(1) Notwithstanding anything contained in Section 3, where the Central Government, having regard to the nature of the process of manufacture or production of excisable goods of any specified description, the extent of evasion of duty in regard to such goods or such other factors as may be relevant, is of the opinion that it is necessary to safeguard the interest of revenue, specify, by notification in the Official Gazette, such goods as notified goods and there shall be levied and collected duty of excise on such goods in accordance with the provisions of this Section.
(2) Where a notification is issued under sub-section (1) the Central Government may, by rules, provide for determination of the annual capacity of production, or such factor or factors relevant to the annual capacity of production of the factory in which such goods are produced, by the Commissioner of Central Excise and such annual capacity of production shall be deemed to be the annual production of such goods by such factory:
Provided that where a factory procuring notified goods is in operation only during a part of the year, the production thereof shall be calculated on proportionate basis of the annual capacity of production.(3) The duty of excise on notified goods shall be levied at such rate as the Central Government may by notification in the Official Gazette specify, and collected in such manner as may be prescribed:
Provided that, where a factory producing notified goods did not produce the notified goods during any continuous period of not less than seven days, duty calculated on a proportionate basis shall be abated in respect of such period if the manufacturer of such goods fulfils such conditions as may be prescribed.(4) Where an assessee claims that the actual production of notified goods in his factory is lower than the production determined under sub-section (2), the Commissioner of Central Excise shall, after giving an opportunity to the assessee to produce evidence in support of his claim, determine the actual production and redetermine the amount of duty payable by the assessee with reference to such actual production at the rate specified in sub-section (3).
(5) Where the Commissioner of Central Excise determines the actual production under sub-section (4), the amount of duty already paid, if any, shall be adjusted against the duty so redetermined and if the duty already paid falls short of, or is in excess of the duty so redetermined, the assessee shall pay the deficiency or be entitled to a refund as the case may be......................
5. At the first blush, the contention of the writ petitioners seem to be rather interesting, more so by reason of the fact that the petitioners would be otherwise asked to pay duty for the production the quantum of which has not been able to be reached by the petitioners. But on a close scrutiny of the statute, the submission seems to be totally unfair and unjust. We do not find any substance in such a contention. The statute is clear and categorical as regards a situation as in the present case. Sub-section (4) of Section 3-A itself provides that where an assessee claims that the actual production of notified goods in his factory is lower than the production determined under subsection (2), the Commissioner of Central Excise upon giving an opportunity to the assessee, would determine the actual production and redetermine the amount of duty payable by the assessee with reference to such actual production at the rates specified in sub-section (3). Sub-section (4) therefore, is a complete relief which is made available by the statute itself. Subsection (5) also lends assistance to such a relief. On the wake of availability of such relief in the statute itself, we do not see any reason to interfere in the matter and dispose of the writ petitions without any order being made excepting, however, recording, in the event the actual production falls below the targetted production as determined, the writ petitioners would be at liberty to approach the Commissioner of Central Excise in terms of the provisions in sub-section (4) of Section 3-A of the Act. This is, however, subject to the availability of the relief in terms of the rules framed under Sections 3 and 3-A of the Act.
6. The writ petitions are thus disposed of. No order as to costs.