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TMI Blog2015 (7) TMI 499X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 5 would not be applicable and as such the Apex Court s Judgment also in the case of Doaba Steel Rolling Mills (2011 (7) TMI 10 - SUPREME COURT OF INDIA) would not be applicable. In view of this, the impugned order is not sustainable. The same is set aside. - Decided in favour of assessee. - Excise Appeal No. E/1299/2003-Ex[DB] - Final Order No. 52004 /2015 - Dated:- 25-6-2015 - Hon ble Mr. Rakesh Kumar, Member (Technical) And Hon'ble Mr. S.K. Mohanty, Member (Judicial),JJ. For the Appellants : Mr. M S Negi, DR For the Respondent : Ms. Rajesh Rawal (Advocate) ORDER Per S K Mohanty: The present appeal has come up for hearing pursuant to the judgment dated 12.01.2015 of the Hon'ble Supreme Court delivered in the case of the appellant itself in Civil Appeal No.407 of 2015 [S.L.P. (c) No. 22266 of 2014], wherein, while setting aside the orders passed by this Tribunal in appeal and the orders passed by the Hon'ble High Court in Writ/Review petitions, the Hon'ble Apex Court have directed this Tribunal to proceed with the hearing on merits of the case, without being influenced by any kind of concession that was given at the earlier point of ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a later date, after installation of the said rolls in April' 1997. 2.4 Based on the correspondence exchanged between the Central Excise department and the appellant, the Commissioner vide order-in-original dated 8.6.2001 determined the annual capacity of the appellants as 6054 MT, as while the capacity determined on the basis of the formula prescribed in sub rule (3) of Rule 3 of the Capacity Determination Rules, 1997 by taking the nominal centre distance as 195 MM was 3613 MT, the actual production during 1996-1997 was 6054 MT and accordingly the Commissioner held that in view of Rule 5 of the Capacity Determination Rules, 1997, the annual capacity of production would be 6054 MT. Against the above order of the Commissioner, the appellant filed the appeal before the Tribunal. The Tribunal vide final dated 16.01.2002 set aside the Commissioner s Order dated 8.6.2001 and remanded the matter back to the Commissioner for redetermination of the annual capacity of production of the appellant in the light of Larger Bench judgment of the Tribunal in the case of Sawanmal Shibumal Steel Rolling Mills vs CCE Chandigarh-I [2001 (127) ELT 46]. 2.5 In de novo proceedings the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applying Rule 5, as the appellant had made the required declaration regarding their parameters in terms of Rule 3(1) of the Capacity Determination Rules, 1997 on 18.08.1997. Since the required declaration under Rule 3(1) of the Capacity Determination Rules had been made prior to 1.9.1997 when Rule 5 was not there, this Rule cannot be invoked. During the period prior to 1.9.97 the annual capacity determination or production was to be determined only on the basis of the formula prescribed in Rule 3(3) and there was no provision that if actual production during 1996-1997 was more than the capacity of production determined under Rule 3(3). It is the actual production during 1996-1997 which would be taken as annual capacity of production. Since such a provision came w.e.f. 1.9.1997, the same cannot be applied in those cases where the declaration for determination of annual capacity of production was made during period prior to 1.9.1997. (2) The Apex Court in the case of Doaba Steel Mills has held that from the language of Rule 5 it is evident that where annual capacity is determined under Rule 3(3), Rule 5 springs into action. However in the instant case the change in parameter was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from 1.8.1997, there was no Rule 5 and the Rules provided for determination of annual capacity of production only on the basis of formula prescribed in Rule 3(3) which was based on certain parameters d , n i and speed of Rolling to be declared to the Commissioner in terms of Rule 3(1). It is only by another notification issued under section 3A(2) that the Capacity Determination Rules, 1997, were amended by adding Rule 5 which provided that - If in case the annual capacity determined by the formula in sub Rule (3) of Rule 3 in respect of a mill is less than the actual production of the mill during the financial year 1996-1997, the annual capacity shall be deemed to be equal to the actual production of the mill during the financial year 1996-1997 . Thus in terms of the amended Capacity Determination Rules, is in force w.e.f. 1.9.1997, if the actual production in the year 1996-1997 was higher than the annual production determined on the basis of the formula prescribed in Rule 3(3), it is the actual production during 1996-1997 which shall be deemed to be the annual capacity of production. The Apex Court in the case of Doaba Steel Rolling Mills (supra) considered the question as to wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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