Sanmati Casting (P) Ltd. Vs. Commissioner of Central Excise - Court Judgment

Excerpt:
1. these are 3 appeals filed by 3 different parties. since in all these 3 appeals the issue is the same, they were heard together and are being disposed of by this common order.2. the issue relates to determination of the annual production capacity in terms of section 3a of the central excise act, 1944. the appellants are engaged in the manufacture of m.s. ingots. the contentions of the appellants before the lower authorities was that taking into consideration section 3a which is charging section, sub-section (4) of section 3a was introduced. it was pleaded that it was never the intention of the legislature to charge the duty on the goods which have not been manufactured; that taking shelter under rule 96zo (3) is not correct; that sub-rule (3) of rule 96zo is procedural one and does not overrule section 3a; that legislation of rules is subordinate legislation and, therefore they cannot override the provisions of the act; that the commissioner in the impugned orders held that provisions of rule 96zo(3) are very clear; that a person who chooses to discharge the duty under sub-rule 96zo(3) cannot claim the benefit of sub-section 4 of section 3a.3. we have heard shri j.s. agarwal, ld. advocate who submits that an identical issue came up for decision before the tribunal in the case of minakashi castings; that the tribunal in its final order nos.a/85-86/99-nb, dated 15-1-1999 held that "according to department this right cannot be extended to the party in view of the wordings under rule 96zo(3). in our view the right so vested and the statutory right cannot be divested by rule and in the facts and circumstances of the case and in view of the conflict between section 3a(4) and rule 96zo (3) the benefit vested under section 3a (4) cannot be denied on the ground that the party has opted for payment of duty under 96zo(3). with these observations, we are remanding these two matters to the concerned commissioner for determination of the actual production and redetermine the amount of duty payable by the assessee with reference to such actual production as envisaged under sub-section (4) of section 3a and to pass an order in accordance with law after providing an opportunity to the appellants. thus, these two appeals are allowed by way of remand." 4. shri m.m. dubey, ld. jdr submits that there was another case of v.k.which was heard by the tribunal and the order was yet to be out. he submits that the other bench may or may not take the same view as in the present case. he, therefore prays that a different view is possible and the appeal may be kept pending.5. we have heard the rival submissions. we find that the facts in the instant are identical to those in the case of minakashi castings. we, therefore hold that the ratio of the judgment of this tribunal squarely covers the present cases. the contention of the ld. jdr that the appeal may be kept pending, is not acceptable in view of the fact that the decision on the identical issue is available and the same has not been stayed so far. in this view of the matter, we hold that these are a fit cases for remand, therefore, the cases are remanded back to the adjudicating authority to determine the capacity of the furnace in terms of section 3a after giving the appellants an opportunity of being heard in person and pass appropriate orders in accordance with law. the appeals are allowed by way of remand.

Judgment:
1. These are 3 appeals filed by 3 different parties. Since in all these 3 appeals the issue is the same, they were heard together and are being disposed of by this common order.

2. The issue relates to determination of the annual production capacity in terms of Section 3A of the Central Excise Act, 1944. The appellants are engaged in the manufacture of M.S. Ingots. The contentions of the appellants before the lower authorities was that taking into consideration Section 3A which is charging Section, Sub-section (4) of Section 3A was introduced. It was pleaded that it was never the intention of the legislature to charge the duty on the goods which have not been manufactured; that taking shelter under Rule 96ZO (3) is not correct; that Sub-rule (3) of Rule 96ZO is procedural one and does not overrule Section 3A; that Legislation of rules is subordinate legislation and, therefore they cannot override the provisions of the Act; that the Commissioner in the impugned orders held that provisions of Rule 96ZO(3) are very clear; that a person who chooses to discharge the duty under Sub-rule 96ZO(3) cannot claim the benefit of Sub-section 4 of Section 3A.3. We have heard Shri J.S. Agarwal, ld. Advocate who submits that an identical issue came up for decision before the Tribunal in the case of Minakashi Castings; that the Tribunal in its Final Order Nos.

A/85-86/99-NB, dated 15-1-1999 held that "According to department this right cannot be extended to the party in view of the wordings under Rule 96ZO(3). In our view the right so vested and the statutory right cannot be divested by Rule and in the facts and circumstances of the case and in view of the conflict between Section 3A(4) and Rule 96ZO (3) the benefit vested under Section 3A (4) cannot be denied on the ground that the party has opted for payment of duty under 96ZO(3). With these observations, we are remanding these two matters to the concerned Commissioner for determination of the actual production and redetermine the amount of duty payable by the assessee with reference to such actual production as envisaged under Sub-section (4) of Section 3A and to pass an order in accordance with law after providing an opportunity to the appellants. Thus, these two appeals are allowed by way of remand." 4. Shri M.M. Dubey, ld. JDR submits that there was another case of V.K.which was heard by the Tribunal and the order was yet to be out. He submits that the other Bench may or may not take the same view as in the present case. He, therefore prays that a different view is possible and the appeal may be kept pending.

5. We have heard the rival submissions. We find that the facts in the instant are identical to those in the case of Minakashi Castings. We, therefore hold that the ratio of the judgment of this Tribunal squarely covers the present cases. The contention of the ld. JDR that the appeal may be kept pending, is not acceptable in view of the fact that the decision on the identical issue is available and the same has not been stayed so far. In this view of the matter, we hold that these are a fit cases for remand, therefore, the cases are remanded back to the adjudicating authority to determine the capacity of the furnace in terms of Section 3A after giving the appellants an opportunity of being heard in person and pass appropriate orders in accordance with law. The appeals are allowed by way of remand.