2017 (8) TMI 1214 - AT - Central Excise

Jurisdiction - power of Commissioner (Appeals) to refix ACP - Held that - it cannot be overlooked that the statutory power for refixing such ACP is not with the Commissioner (Appeals) but with jurisdictional Commissioner. He alone can determine and fix the ACP - the impugned order needs to be set aside and remanded to the jurisdictional Commissioner with the direction to refix the ACP of the factory of the assessee as per the revised application submitted by them - appeal allowed by way of remand.

Summary

Issues:
Appeal against Order-in-Appeal No.06/2006 - Duty liability under section 3A - Declaration for Annual Capacity of Production (ACP) - Change in furnace type - Technical Committee's divided opinion - Duty demands for differential duty - Commissioner (Appeals) decision based on technical experts' opinion - Appeal by Revenue challenging the decision - Statutory power for refixing ACP - Challenge to Hot Re-Rolling Mills Annual Capacity Determination Rules - Reference to Supreme Court decision - Impugned order set aside and remanded.

Analysis:
The case involved an appeal by Revenue against Order-in-Appeal No.06/2006 concerning the duty liability under section 3A of the Central Excise Act. The appellant, a non-alloy steel manufacturer, initially declared their furnace as 'pusher type' for fixing the Annual Capacity of Production (ACP) and paid duty accordingly. After a factory closure and reopening with a different furnace type declared as 'batch type,' a Technical Committee's divided opinion arose. The Commissioner (Appeals) set aside the duty demand based on technical experts' view, leading to Revenue's appeal.

The Tribunal observed that the jurisdictional Commissioner was tasked with fixing the ACP based on the furnace type declaration. Despite the Technical Committee's divided opinion, the Commissioner did not conclusively refix the ACP. The Commissioner (Appeals) decision, guided by technical experts' opinion, was deemed inappropriate as the power to refix ACP solely rested with the jurisdictional Commissioner, not the Commissioner (Appeals).

Additionally, the Tribunal noted challenges to the Hot Re-Rolling Mills Annual Capacity Determination Rules, referencing a Supreme Court case and the need for further examination. Considering these factors, the impugned order was set aside and remanded to the jurisdictional Commissioner for ACP refixing based on the revised application. The decision was to await the outcome of the Larger Bench's decision on the Rule's vires, with duty demands to be recalculated post-ACP determination.

In conclusion, the Tribunal directed the remand to the jurisdictional Commissioner for ACP refixing, emphasizing the need for statutory compliance and awaiting the Supreme Court's decision on the Rule's validity. The impugned order was overturned, highlighting the importance of proper authority in ACP determination and duty calculation.