9911796707
TMI Blog2007 (3) TMI 593X X X X Extracts X X X X X X X X Extracts X X X X ..... e under the Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997. The Commissioner had determined the ACP of their mill at 29,206 MTs w.e.f. 1-9-97 under Rule 5 of the above Rules on the basis of the actual production for the year 1996-97. This decision was duly communicated to the appellants by the Asst. Commissioner in a letter dated 22-9-97. Towards the end of 1998, the parameter (d) [nominal centre distance of the pinions in the pinion stand] was reduced from 300 mm to 156 mm and this change was approved by the Commissioner w.e.f. 1-1-99. Under Rule 96ZP(3), the appellants were liable to pay duty for each month, which was equivalent to 1/12th of the amount calculated at the rate of Rs. 300/- multiplied by the ACP deter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of that rule had been stayed by the Madras High Court in a writ petition. They also submitted that the ACP should have been re-determined for the period from January 1999 on the basis of the new (d) factor. Considering the (d) factor at 156 mm, they themselves worked out the ACP to be 13,677 MTs. According to them, the pro rata duty liability per month from Jan. 99 would be only Rs. 1,89,838/- in terms of the third proviso to Rule 96ZP (3). They also submitted that the payments already made by them for the period upto December 97 had not been taken into account by the department. After considering these and other submissions, the Commissioner passed the following order :- 1. Proceedings in respect of the show cause notice O.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty passed order dated 22-7-2002 imposing a penalty of Rs. 39,87,205/- on the assessee under Rule 96ZP(3) and directing them to pay interest on the duty amount under the same provisions for the relevant period. This decision is under challenge in the assessee s appeal No. 508/2002. 3. After examining the records and hearing both sides, we find that the ACP of the assessee s mill had been determined by the Commissioner under Rule 5 of the relevant rules at 29,206 MTs. This determination was never challenged by the assessee. Later on, the Commissioner maintained the same ACP with the changed parameter (d) at 156 mm w.e.f. 1-1-99 under Rule 4(2) and Rule 5 of the Annual Capacity Determination Rules, 1999. This decision of the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 10,92,400/- raised on the assessee by the Commissioner for the period September 97 to December 98. 6. For the subsequent period, it is submitted by learned counsel that the ACP should have been determined pro rata with the (d) factor at 156 mm. On this basis, the ACP for the period from January 99 would be 29206x156/300 = 15187 MTs and, accordingly, the monthly duty liability would be 15187x150/12 = Rs. 1,89,838/-. This claim is based on the third proviso to sub-rule (3) of Rule 96ZP, which reads thus :- Provided also that if a manufacturer makes a change in the capacity of re-rolling installed in his factory, or there is any change in the total re-rolling capacity installed, he shall pay the amount calculated pro rata . Af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta calculation of ACP at 13,767 MTs and that the Commissioner s decision was not challenged. 7. In the result, the demand of duty of Rs. 28,94,805/- raised by the Commissioner for the period January 1999 to March 2000 also will be sustained. Appeal No. 438/2001 stands dismissed. 8. In the subsequent order, learned Commissioner imposed a penalty equal to duty on the assessee under Rule 96ZP(3). The Tribunal has consistently held that it is open to the departmental authorities, under the above provision of law, to impose a lesser penalty on a manufacturer of re-rolled products depending on the facts and circumstances of the case. It appears from the impugned order that learned Commissioner has termed the penalty under Rule 96ZP (3) as ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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