2014 (12) TMI 904 - HC - Central Excise

Determination of Annual Capacity Production - respondent/assessee is engaged in the manufacture of hot-rolled products of Iron and Steel - Compounded Levy Scheme of Rule 96ZP of the Central Excise Rules 1944 read with Section 3A of the Central Excise Act 1944 - imposition of interest and penalty - Held that - Rule 5 states that in case the annual capacity determined by the formula in sub-rule (3) of rule 3 in respect of a mill is less than the actual production of the mill during the financial year 1996-97 then the annual capacity so determined shall be deemed to be equal to the actual production of the mill during the financial year 1996-97. Hence Rule 5 will have to be taken into consideration for determination of the Annual Capacity Production even when there is any change in the installed machinery or any part thereof is intimated to the Commissioner of Central Excise in terms of Rule 4(2) of the said Rules. Rule 5 of the 1997 Rules will be attracted for determination of the annual capacity of production of the factory when any change in the installed machinery or any part thereof is intimated to the Commissioner of Central Excise in terms of Rule 4(2) of the said Rules - In the light of the decision of the Supreme Court reported in 2011 (7) TMI 10 - SUPREME COURT OF INDIA on remand the competent authority has to determine the same. As a consequence if duty penalty and interest is leviable the competent Authority is entitled to proceed further as provided under the relevant provisions of the Rules by following the procedure prescribed. It is needless to say that opportunity will be given to the assessee so as to avoid an allegation of violation of principles of natural justice. - Appeal disposed of.

Summary

Issues Involved:
1. Determination of annual capacity of hot re-roll mills under HRSMACD Rules, 1997.
2. Applicability of Rule 5 of HRSMACD Rules, 1997 when the annual capacity is less than the actual production of 1996-97.
3. Reliance on the Punjab and Haryana High Court decision in Doaba Steel Rolling Mills case pending before the Supreme Court.

Detailed Analysis:

1. Determination of Annual Capacity of Hot Re-Roll Mills:
The first issue revolves around whether changes in the parameters of hot re-roll mills necessitate the re-determination of annual capacity using the formula prescribed in Rule 3(3) of the HRSMACD Rules, 1997. The court concluded that any changes in the parameters of the hot re-roll mill must fall back on Rule 3. It was noted that neither the assessee nor the Department contested the applicability of Rule 3, making the first substantial question of law irrelevant as the rules themselves provide the answer.

2. Applicability of Rule 5 of HRSMACD Rules, 1997:
The second issue addressed whether Rule 5 of the HRSMACD Rules, 1997 should be applied when the annual capacity determined under Rule 3(3) is less than the actual production of 1996-97. The court noted that the Supreme Court had settled this issue in its decision dated 06.07.2011, holding that Rule 5 must be applied for determining the annual capacity of production when any change in installed machinery is intimated to the Commissioner of Central Excise. The Supreme Court's reasoning emphasized that Rule 5 springs into action when annual capacity is determined or re-determined using the formula in Rule 3(3), and it must be given full effect. Consequently, the court answered this substantial question of law in favor of the Revenue.

3. Reliance on Pending Decision of Punjab and Haryana High Court:
The third issue involved the Tribunal's reliance on the Punjab and Haryana High Court's decision in Doaba Steel Rolling Mills, which was pending before the Supreme Court. The court recognized that the Supreme Court had rendered a final decision on this matter, affirming that Rule 5 is applicable for determining the annual capacity of production when changes in machinery are notified. This rendered the third substantial question of law academic, as the Supreme Court's decision provided the necessary clarity.

Procedural and Penalty Aspects:
The court also addressed the procedural aspects, noting that the Tribunal had set aside the ACP orders and remanded the matter to the Original Authority for fresh determination. The Tribunal's decision was based on the law prevailing at that time, which was subsequently clarified by the Supreme Court. The court directed that the competent authority must re-determine the ACP in accordance with Rule 5 and proceed with any duty, penalty, and interest as per the relevant rules, ensuring compliance with principles of natural justice.

Miscellaneous Appeals:
The court addressed additional appeals challenging the Tribunal's miscellaneous orders and the imposition of penalties. It concluded that the competent authority must re-determine the ACP and, if necessary, impose penalties following the procedure prescribed by the relevant rules.

Final Disposition:
In conclusion, the court allowed the appeals in favor of the Revenue, directing the competent authority to re-determine the ACP in line with the Supreme Court's interpretation of Rule 5 and proceed with any consequential actions. The court also disposed of related appeals, noting that certain substantial questions of law had become academic in light of the Supreme Court's decision and the final disposition of the matter by the Tribunal.

Summary:
The judgment comprehensively addressed the determination of annual capacity of hot re-roll mills under the HRSMACD Rules, 1997, clarified the applicability of Rule 5 when the annual capacity is less than the actual production of 1996-97, and resolved issues related to reliance on a pending decision. The court's directives ensure that the competent authority re-determines the ACP in accordance with the Supreme Court's interpretation, with due process followed for any penalties and interest.