9911796707
TMI Blog2011 (7) TMI 1028X X X X Extracts X X X X X X X X Extracts X X X X ..... and as such case, he is entitled to refund. If the section takes care of the rights of the producer/manufacturer by providing that on less production/manufacture, he would be entitled to refund and the Supreme Court says that Section3A is relatable to the production and not the capacity only, then, it would not be proper to say that Section3A is ultra vires the Constitution. We would agree with the learned Counsel that excise can be levied on the production and/or manufacture and not otherwise, but, Section3A cannot be held to be ultra vires the Constitution or the Central Excise Act itself, simply because it provides levy of excise on the annual production capacity, specially when it gives a right to the manufacturer/producer to claim refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Excise Act, 144? 3. We however feel that the question in the present form does not bring about the full controversy. We therefore, reframe the question for consideration in the present appeal as follows : Whether CEGAT was correct in allowing the appeal of respondent assessee following judgement of Madras High Court in case of Beauty Dyers v. Union of India reported in 2002 (52) RLT 636(Mad.) and holding that Rule 3 of the Hot Air Stenter Independent Textile Processor Annual Capacity Determination Rules, 1944, having been declared ultra vires in such judgement, cannot be applied in the present case? 4. Learned counsel Shri Darshan Parikh for the appellant submitted that the tribunal proceeded on the footi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he has produced some quantity less than his annual capacity and as such case, he is entitled to refund. If the section takes care of the rights of the producer/manufacturer by providing that on less production/manufacture, he would be entitled to refund and the Supreme Court says that Section3A is relatable to the production and not the capacity only, then, it would not be proper to say that Section3A is ultra vires the Constitution. We would agree with the learned Counsel that excise can be levied on the production and/or manufacture and not otherwise, but, Section3A cannot be held to be ultra vires the Constitution or the Central Excise Act itself, simply because it provides levy of excise on the annual production capacity, specially when ..... X X X X Extracts X X X X X X X X Extracts X X X X
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