2018 (8) TMI 542 - AT - Central Excise

Demand of Differential duty - redetermination of the Annual Capacity of Production under Hot Rerolling Mills Annual Capacity Determination Rules, 1997 read with Rules 96ZP of erstwhile Central Excise Rules, 1944 - Held that - In the case of Venus Castings (P) Ltd. 2000 (4) TMI 37 - SUPREME COURT OF INDIA , Rule 96ZP(3) was held ultravirus however in another case of Bhuwalka Steel Industries Ltd. Vs UOI 2017 (3) TMI 1357 - SUPREME COURT OF INDIA , the Hon ble Supreme Court dealing with the same issue referred the matter to the Larger Bench of Hon ble Supreme Court. It will not be appropriate for this Tribunal to take any decision at this stage - the matter remanded to the original authority to decide the matter only after the outcome of the Hon ble Supreme Court judgment by the larger Bench in the case of Bhuwalka Steel Industries - appeal allowed by way of remand.

Summary

Issues:
Appeal against order-in-appeal upholding demand of differential duty due to redetermination of Annual Capacity of Production under Hot Rerolling Mills Annual Capacity Determination Rules, 1997 read with Rules 96ZP of erstwhile Central Excise Rules, 1944.

Analysis:
The appeal was directed against an order-in-appeal passed by the Commissioner (Appeals) where the demand of differential duty was upheld due to the redetermination of the Annual Capacity of Production under specific rules. The appellant did not appear during the proceedings. The Ld. Deputy Commissioner (AR) representing the Revenue reiterated the findings of the impugned order.

Upon careful consideration of the submissions and records, the Tribunal found that the issue pertained to the demand of duty on annual production capacity as per the relevant rules. Reference was made to the case law of Venus Castings (P) Ltd. 2000 (117) ELT 273 (SC) where a specific rule was held ultravirus. In contrast, in the case of Bhuwalka Steel Industries Ltd. Vs UOI 2017 (348) ELT 393 (SC), the Supreme Court referred a similar issue to a Larger Bench. Given these circumstances, the Tribunal deemed it inappropriate to make a decision at that stage. Consequently, the impugned order was set aside, and the matter was remanded to the original authority to await the outcome of the Supreme Court judgment by the Larger Bench in the case of Bhuwalka Steel Industries. The appeal was allowed through remand to the adjudicating authority.

The judgment was pronounced in open court on 04.07.2018 by MR. RAMESH NAIR, MEMBER (JUDICIAL) and MR. RAJU, MEMBER (TECHNICAL).