2016 (10) TMI 569 - AT - Central Excise

Differential duty under the compounded levy scheme u/s 3 (a) of the Central Excise Act - iron and steel products manufactured in Hot Steel Rerolling Mills with effect from 01.09.1997 - constitutional validity of Rule 5 - the decision in the case of R.S. Industries (Rolling Mills) Vs Union of India 2016 (5) TMI 1277 - RAJASTHAN HIGH COURT referred - Held that - the issue of the case R.S. Industries (Rolling Mills) Vs Union of India is similar and the decision apply. Since the matter is pending before the Hon ble Supreme Court for final determination, regarding the constitutional validity of Rule 5, of the Hot Re-rolling Mills Capacity Determination Rules 1997, the present appeals is disposed off by observing that the outcome of the pending appeals before the Apex Court would apply. Imposition of penalty and interest - Held that - the decision in the case of Shri Bhagwati Steel Rolling Mills Vs CCE 2015 (11) TMI 1172 - SUPREME COURT apply where it was held that a penalty can only be levied by authority of statutory law, and Section 37 of the Act, does not expressly authorize the Government to levy penalty higher than ₹ 5,000/-. This further shows that imposition of a mandatory penalty equal to the amount of duty not being by statute would itself make Rules 96ZO, 96ZP and 96ZQ without authority of law. The Rules of 96ZO, 96ZP and 96ZQ striked down insofar as they impose a mandatory penalty equivalent to the amount of duty on the ground that these provisions are violative of Articles 14, 19(1)(g) and are ultra vires the Central Excise Act - imposition of penalty and interest not sustainable in law - appeal disposed off - decided against appellant.

Issues Involved:
1. Change of cause title from Bhuwalka Steel Industries Ltd to Deccan Alloys Pvt Ltd.
2. Payment of differential duty under the compounded levy scheme introduced in terms of Section 3A of the Central Excise Act for iron and steel products manufactured in Hot Steel Rerolling Mills.
3. Determination of annual production capacity under Rule 5 of the Hot Re-rolling Steel Mills Annual Capacity Determination Rules 1997.
4. Constitutional validity of Rule 5 of the Hot Re-rolling Steel Mills Annual Capacity Determination Rules 1997.
5. Demand for interest and penalty under Rule 96ZP of the Central Excise Rules 1944.

Detailed Analysis:

1. Change of Cause Title:
The appellant, Deccan Alloys Pvt Ltd, filed a miscellaneous application to change the cause title from Bhuwalka Steel Industries Ltd to Deccan Alloys Pvt Ltd. The Tribunal allowed the application, recognizing that the unit previously managed by Bhuwalka Steel Industries Ltd was taken over by Deccan Alloys Pvt Ltd as a going concern, along with its assets and liabilities, as per the sale deed dated 26.09.2006.

2. Payment of Differential Duty:
The appellant filed four appeals concerning the payment of differential duty under the compounded levy scheme introduced by Section 3A of the Central Excise Act for iron and steel products manufactured in Hot Steel Rerolling Mills effective from 01.09.1997. The Commissioner (Appeals) had upheld the order-in-original, confirming the demand for differential duty amounting to ?2,12,40,994/- for the period from September 1997 to March 2000.

3. Determination of Annual Production Capacity:
The appellant's annual production capacity was determined under Rule 5 of the Hot Re-rolling Steel Mills Annual Capacity Determination Rules 1997. The Commissioner fixed the annual production capacity by invoking Rule 5, which states that if the capacity determined by the formula in Rule 3(3) is less than the actual production during the financial year 1996-97, the capacity shall be deemed equal to the actual production of that year. The appellant challenged this determination, arguing that they had paid duty based on the capacity determined by Rule 3(3).

4. Constitutional Validity of Rule 5:
The appellant challenged the constitutional validity of Rule 5 before the Karnataka High Court, which upheld the rule's validity. The appellant's writ appeals were dismissed by the Division Bench of the Karnataka High Court, and the matter is currently pending before the Supreme Court. The Tribunal noted that the Karnataka High Court's decision has not been stayed and disposed of the appeal in line with this judgment, observing that the outcome of the Supreme Court's decision would apply to these cases to avoid multiplicity of litigation.

5. Demand for Interest and Penalty:
The Tribunal considered the Supreme Court's decision in Shri Bhagwati Steel Rolling Mills Vs CCE, which struck down Rule 96ZP of the Central Excise Rules 1944 regarding the demand for interest and penalty as being ultra vires and violative of Articles 14 and 19(1)(g) of the Constitution. Consequently, the Tribunal held that the imposition of penalty and interest in the present case is not sustainable in law and set aside these demands.

Conclusion:
The Tribunal upheld the impugned order concerning the differential duty demand but set aside the imposition of penalty and interest, aligning with the Supreme Court's ruling in Shri Bhagwati Steel Rolling Mills. The appeals were disposed of with the observation that the outcome of the pending Supreme Court appeals regarding the constitutional validity of Rule 5 would apply to these cases.

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