9911796707
TMI Blog1999 (4) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... he benefit of Rule 96-ZO(3). 2. The facts of the case are that the appellants are engaged in the manufacture of MS Ingots. They have induction furnace for production. With the amendment of Section 3A, the mode of charging duty on MS Ingots produced by induction furnace was changed, Section 3A(4) provided that annual capacity can be fixed on the basis of the actual production of the furnace among other. 3. Shri Alok Arora, ld. Counsel appearing for the appellants submitted that similar issue came up before the Tribunal in the case of Minakashi Castings and M/s. Inder Steels Pvt. Ltd. Final Order Nos. A/85-86/99-NB, dated 15-1-1999 and that the Tribunal in para 13 of this judgment held as under : 13. We have carefully considered the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant Rule, the best course open to him was to file an appeal before the higher forum. Instead he has chosen to proceed to pass the order with the conception that benefit in terms of Section 3A(4) cannot be extended to the party. The action of the Commissioner is in defiance of law and against the principles of judicial discipline as the order of the Tribunal was binding on him unless the operation of the order of the Tribunal was suspended by competent Court. The mere fact that the order of the Tribunal is not acceptable to the department in itself is not a ground to take a different view without filing an appeal against the order of the Tribunal. The order of the Commissioner is not sustainable on this ground alone as it was rightly arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mine the actual production and re-determining the amount of duty payable with reference to the actual production and the Commissioner has to pass an order accordingly (reviewing the position) after providing an opportunity to the appellants. According to department this right cannot be extended to the party in view of the wordings under Rule 96ZO(3). In our view the right so vested and the statutory right cannot be divested by rule and in the facts and circumstances of the case and in view of the conflict between Section 3A(4) and Rule 96ZO(3) the benefit vested under Section 3A(4) cannot be denied on the ground that the party has opted for payment of duty under 96ZO(3). With these observations, we are remanding these two matters to the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a provision as held by the Hon ble A.P. High Court that rules are to be looked into even if deciding the case under Section 3A(4). 5. We have heard the rival submissions. We have also perused the case law cited by both the sides. We note that the Hon ble A.P. High Court was concerned to examine the vires of Section 3A and was not dealing with the problem whether the appellant was free to take advantage of sub-section 4 of Section 3A even if he had opted to avail the provision of Rule 96ZO(3). 6. We have also perused the order of this Tribunal in the case of M/s. Minakshi Castings. We note that the Tribunal examined in depth the option under Rule 96ZO(3) vis-a-vis Section 3A(4) of the Act. From the observations of the Tribunal as repr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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