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TMI Blog2009 (6) TMI 994X X X X Extracts X X X X X X X X Extracts X X X X ..... al Production Capacity (APC) for the period from 1-9-97 to 31-3-98 was communicated by a letter. On 29-1-99, the APC for 1998-99 was communicated and in May, 2000, the APC for the year 1999-31-3-2000 was communicated. 2. However, on 28-10-97, on a group of writ petitions including the petition filed by All India Re-Rolling Mills Association, the Hon ble Delhi High Court passed a detailed stay order as reported in 1997 (96) E.L.T. 232 staying implementation of Rule 96ZP and Notifications issued thereunder. Revenue filed Civil Appeals before the Hon ble Supreme Court and Hon ble Supreme Court passed an order, restraining the Union Government from taking penal or coercive measures and also clarifying that it was open to the manufacturers to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yet closed and still pending before the concerned authorities. [UOI v. Supreme Steel and General Mills - 2001 (133) E.L.T. 513 (S.C.) = 2001 (47) RLT 129]. Appellant s case was not closed and was pending on 15th October, 2001 when the above direction was issued by the Hon ble Supreme Court, and therefore, duty has to be assessed on the basis of actual production, and not on the basis of Annual Production Capacity determined for the appellant s factory. (ii) Section 3A stands deleted without any saving clause with effect from 11-5-2001 and Rule 96ZP stands deleted without any saving clause with effect from 1-3-2001. All pending cases would therefore, lapse in absence of any saving clause, and therefore, the impugned order passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant on the sole ground that the appellant had opted for the Scheme at the relevant time and therefore, the appellant cannot be allowed to be opt out from the Scheme notwithstanding all the above litigation, orders of the Hon ble Courts and also the peculiar nature of the controversy. 3. Further, Ld. Advocate submits that the impugned order has been passed stating that APC for 3 years has already been fixed and communicated to the appellants and therefore has attained finality. He drew our attention to the order of the Hon ble Gujarat High Court in their own case dated 31-1-2003 wherein the Hon ble High Court observed that Learned Standing Counsel for Central Government appearing for the respondent authorities states that the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the department during the visit of the officers on 20-11-98. The obvious conclusion the Commissioner has drawn is that APC has already been fixed. Commissioner also goes on to observe that the main issue is not whether the applications made on 25-5-98, 25-9-98 and 31-3-99 were considered or not and these are in contradiction to the claim of the appellants before the Hon ble High Court. He also observes that based on the misleading pleadings by the appellants, the Hon ble High Court had passed the orders. He also observed that as soon as the Hon ble Supreme Court decided the issue on 15-10-2001, the Dy. Commissioner finalized the issue and decided the case and issued the order confirming demand raised vide show cause notices which were is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the manufacturers have stated that they do not challenge the validity of Section 3A, introduced in Central Excise Act, 1944. On the other hand it has been submitted that the excise duty may be charged according to the said provision, on the basis of actual production but for the period of whole year. Shri Harish Salve, learned counsel appearing for the Union of India submitted that there is no dispute with the offer made and also that the assessment shall be made for whole period of one year namely the financial year. No dispute thus remains on the point and the excise duty shall accordingly be assessed in respect of matters not yet closed and still pending before the concerned authorities. 5. In view of the fact that three letters w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of APC to be considered and on the other hand he claims that Section 3A is non existent and no APC can be fixed now. On the other hand, we find that in none of the three applications, the appellant had made a claim that no speaking order was passed by the Commissioner. If the stand of the appellants that Section 3A is no longer in existence and thereof matter cannot be decided now is accepted, the position would be that the earlier order fixing the APC becomes final and consequently the Dy. Commissioner orders passed confirming the duty based on the APC also becomes final. In view of the fact that the benefit claimed by the appellant in terms of the Supreme Court order is being allowed, we are sure the appellants would gracefully accep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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