2019 (4) TMI 1405 - AT - Central Excise

Valuation - re-fixation of capacity of production on the basis of only one batch type furnace which was functional through the impugned period - HELD THAT - The Annual Capacity Determination has not been so as per Annual Capacity Determination Rules and also submissions made by the appellant and inspite of two remand orders by this Hon ble Tribunal, the Revenue is not interested in deciding the case as per remand direction which is impermissible due to having their binding nature - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Re-fixation of annual capacity production (ACP) against the appellant
- Payment of excise duty under Rule 96 ZP
- Dispute regarding the number of functional furnaces
- Non-compliance with previous remand orders by the Adjudicating Authority

Analysis:

Re-fixation of ACP:
The Tribunal noted that the appellant was engaged in manufacturing steel products and had opted to pay duty under Rule 96 ZP. The Jurisdictional Commissioner initially fixed the ACP at 2066.33 MT, leading to a specific duty payment calculation. However, discrepancies were found during the scrutiny of returns, resulting in a show cause notice for short payment of duty. The appellant contested the order, arguing that the ACP determination was incorrect and that the imposition of penalties was unwarranted.

Payment of Excise Duty under Rule 96 ZP:
The appellant's representative contended that the Commissioner's observation regarding the duty payment options under Rule 96 ZP was flawed. They argued that the Commissioner incorrectly relied on a Supreme Court decision unrelated to the case. The appellant sought a re-determination of the ACP based on the direction of the Tribunal and emphasized that penalties and interest should not be applicable in this scenario.

Dispute Regarding Number of Functional Furnaces:
The Tribunal highlighted that the appellant consistently maintained that only one furnace was operational, supported by joint verification reports with Excise officials. Despite previous remand orders directing consideration of this fact, the Adjudicating Authority failed to re-determine the ACP based on a single furnace. The Tribunal criticized the Authority for disregarding the Tribunal's directives and relying on irrelevant precedents, leading to a prolonged legal battle.

Non-compliance with Previous Remand Orders:
The Tribunal expressed dissatisfaction with the Revenue's lack of adherence to the Tribunal's remand directions, emphasizing the binding nature of such directives. Considering the prolonged litigation and the failure to address the core issue of ACP re-fixation, the Tribunal set aside the impugned order and allowed the appeal, signaling the need for a conclusive resolution to the dispute.

In conclusion, the Tribunal's decision centered on the failure of the Adjudicating Authority to address the fundamental issue of ACP re-fixation based on the number of functional furnaces, leading to the setting aside of the impugned order and granting relief to the appellant.