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TMI Blog2012 (1) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... g the formula prescribed in sub-rule (3) of Rule 3. In the absence of any other Rule, sub rule (3) of Rule 3 would be attracted for re-determination of production capacity of a factory, on furnishing of information to the Commissioner as contemplated in Rule 4(2) of the 1997 Rules. Thus, in present case Rule 5 of 1997 Rules would apply and the annual capacity so determined shall be deemed to be actual production during the financial year 1996-97, which is period involved in the present case. - Decided in favor of Revenue. - CEA No. 28 of 2011 (O&M) - - - Dated:- 6-1-2012 - MR. JUSTICE M.M. KUMAR, MR. JUSTICE AJAY KUMAR MITTAL, JJ. Mr.H.P.S. Ghuman, Advocate for the appellant Ms. J.J. Kaur, Advocate for the respondent M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod commencing from 11.12.1998 to 31.03.2000 provisionally. It was finalized by the Commissioner vide order dated 27.04.1998 by redetermining the same as 3355.00 MT from 01.09.1997 to 10.12.1998 and 1890 MT from 11.12.1998 to 31.03.2000. The order dated 27.04.1998 was challenged by the respondent and vide final order dated 29.06.1998, the CESTAT remanded the case to the Commissioner. The Commissioner in order in original observed that respondent had changed the parameter w.e.f. 11.12.1998 after obtaining permission from the Commissioner and according to changed parameter, the capacity of the respondent was reduced. The Commissioner placed reliance on a judgment of the CESTAT in the case of M/s Sawan Mal Shibu Mal Steel Rolling Mills v. CC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Emphasis added) 3. Mr. H.P.S. Ghumman, learned counsel for the Revenue has vehemently argued that question of law is no longer res integra and stands finally settled by a judgment of Hon'ble the Supreme Court in the case of Commissioner of Central Excise Chandigarh v. Doaba Steel Rolling Mills 2011 (269) E.L.T. 298 (S.C.) and argued that the judgment of this Court on which the CESTAT has placed reliance in fact stand reversed by Hon'ble the Supreme Court. Therefore Rule 5 of the 1997 Rules would apply and despite the change in the parameter of installed capacity, the respondent has to pay in accordance with the provisions of Rule 5 of 1997 Rules. 4. Ms. J. J. Kaur, learned counsel for the respondent has however, submitted that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notification in the Official Gazette, such goods as notified goods and there shall be levied and collected duty of excise on such goods in accordance with the provisions of this Section. (2) Where a notification is issued under sub-Section (1), the Central Government may, by rules,- (a) provide the manner for determination of the annual capacity of production of the factory, in which such goods are produced, by an officer not below the rank of Assistant Commissioner of Central Excise and such annual capacity shall be deemed to be the annual production of such goods by such factory; or (b) (i) specify the factor relevant to the production of such goods and the quantity that is deemed to be produced by use of a unit of such factor; a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduction. A manufacture could effect change in installed machinery or any part thereof by intimating to the Commissioner of Central Excise in writing. However, Rule 5, which is significant for disposal of the controversy in the case in hand put everything beyond doubt and the same reads as under: 5. In case, the annual capacity determined by the formula in sub-rule (3) of rule 3 in respect of a mill, is less than actual production of the mill during the financial year 1996-97, then the annual capacity so determined shall be deemed to be equal to be actual production of the mill during the financial year 1996-97. 8. Hon'ble the Supreme Court rejected the argument concerning non-application of Rule 5 of 1997 Rules even in case where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant to the production of the specified goods but such re-determination has again to be as per the formula prescribed in Rule 3(3) of the 1997 Rules. It is clear that sub-rule (2) of Rule 4, which, in effect permits a manufacturer to make a change in the installed machinery or part thereof which tends to change the value of either of the parameters referred to in sub-rule (3) of Rule 3, on the basis whereof the annual capacity of production had already been determined would obviously require redetermination of annual capacity production of the factory/ mill, for the purpose of levy of duty. It is plain that in the absence of any other Rule, providing for any alternative formula or mechanism for redetermination of production capacity of a f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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