2017 (10) TMI 18 - HC - Central Excise

Validity of and applicability of Rule 96 ZP (3) of the Central Excise Rules, 1944 read with Sub-Rule 4 of Rule 3 of the Hot Re-Rolling Steel Mills Annual Capacity Determination Rules, 1997 - Held that - when the petitioner is before the Tribunal, which is the last forum for deciding questions of fact, this Court is inclined to grant liberty to the petitioner to canvas all points in the pending appeal before the Tribunal. Accordingly, the question, which was framed for consideration, is answered in the affirmative and therefore, there would not be any necessity for this Court to go into the merits of the contentions raised in this writ petition - this writ petition is disposed of giving liberty to the petitioner to canvas all points in the pending appeal before the CESTAT, which includes the validity and the correctness of the order dated 24.03.1998, as also the order dated 11.06.2003 both passed by the Commissioner of Central Excise.

Summary

Issues:
Challenge to order passed by Commissioner of Central Excise under specific rules.

Analysis:
The petitioner challenged an order passed by the Commissioner of Central Excise under Rule 96 ZP (3) of the Central Excise Rules, 1944, along with Sub-Rule 4 of Rule 3 of the Hot Re-Rolling Steel Mills Annual Capacity Determination Rules, 1997. The petitioner had previously filed a writ petition challenging the rule and its applicability, which was pending before the CESTAT. The High Court decided that due to subsequent developments, it may not be necessary to examine the merits of the contentions raised by the petitioner as the issue was already under consideration by the CESTAT. The Court noted that if the Tribunal could address the validity and sustainability of the impugned order, then the petitioner could raise all contentions there; otherwise, the High Court would examine the merits of the contentions.

The Assistant Commissioner of Central Excise issued a show cause notice demanding differential duty from the petitioner based on the impugned order fixing the annual production capacity. The petitioner contended that the demand was not authorized as the matter was subjudice and they had obtained a stay against a specific rule. Subsequent communications directed the petitioner to pay the full monthly levy without claiming abatement for temporary closure. Several show cause notices were issued for different periods, demanding differential duty. The petitioner raised objections, including that a specific rule could not be invoked without an amendment and that the rule was not violative of certain constitutional provisions based on a previous court decision.

Following a court decision confirming the demand of duty, the Commissioner reiterated the production capacity order, leading to further adjudication. The petitioner appealed the decision, leading to a series of legal actions, including pre-deposit orders and appeals to higher authorities. The Division Bench modified the Tribunal's order regarding the pre-deposit amount. The petitioner challenged various orders before the CESTAT, including the validity of the order dated 24.03.1998. The High Court granted liberty to the petitioner to raise all points in the pending appeal before the CESTAT, including challenging the orders passed by the Commissioner of Central Excise.

In conclusion, the High Court disposed of the writ petition, allowing the petitioner to raise all points in the pending appeal before the CESTAT, including challenging the validity and correctness of specific orders passed by the Commissioner of Central Excise. The Court emphasized that since the petitioner was before the Tribunal, the last forum for deciding factual questions, there was no need for the High Court to delve into the merits of the contentions raised in the writ petition.