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TMI Blog2015 (9) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... Declaring that Rule 5 of the Hot Rerolling Mills Annual Capacity Determination Rules, 1997 is illegal, ultra virus and unenforceable; b) Quash determination orders dated 23-12-1997, 23-12-1997 and 8-3-2000 (Annexures-K, L & M respectively) c) Directing respondents, their servants and agents not to give effect to Rule 5 of Hot Re-rolling Mills Annual Capacity Determination Rules, 1997 in the case of the petitioner; d) Directing respondents to determine the annual production capacity of the 1st petitioner company under the provisions of Rule 3(3) of Hot Rerolling Mills Annual Capacity Determination Rules, 1997 without reference to Rule 5 thereto and collect excise duty based on such determination for the period 1-9- 1997 to 31-3-2000; e) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egality and constitutionality of Rule 5 of the Hot Re-rolling Mills Annual Capacity Determination Rules, 1997 (for short, "1997 Rules") as the decision of this Court in "Commissioner of Central Excise, Chandigrah v. Doaba Steel Rolling Mills", (2010) 14 SCC 751, has no application in the present situation. They submit that in Doaba Steel Rolling Mills' case (supra) the legality and constitutional validity of Rule 5 of 1997 Rules was not put in issue. 4. Learned counsel are right in their submission as the judgment of this Court in Doaba Steel Rolling Mills (supra) (para 20 of the report at page 758) clarifies as under: "Before addressing the contentions advanced by the learned counsel for the parties, it is essential to note at the ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about constitutional validity and vires of the Rules had been challenged by the petitioner before this Court in the present writ petition and same had been adjudicated by learned Single Judge as well as by Division Bench, he submits that on account of other matters having been remitted back to respective High Courts, present petition also landed before this Court, fact of constitutional validity of Rule 5 of 1997 Rules had been considered by this Court cannot be lost sight of. 5. In that view of the matter, I have perused the order passed by this Court dated 07.12.2005 at the first instance. It would suffice if precise contentions raised by the learned Advocate appearing for petitioner is noticed which reads as under: "5. It is the possib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore Division Bench by filing appeal - W.A.Nos. 315/2006 and 4722-23/2011 before the Division Bench and following question came to be examined by Division Bench of this Court. It reads as under: "4. The question that falls for our consideration in these appeals is "Whether Rule 5 of the Rules is liable to be declared unconstitutional, violative of Article 14 and/or ultra vires Section 3A of the Central Excise Act, 1944 (for short the "Act")." Having formulated above referred question, Division Bench examined the contentions raised in this regard and held as under: "25. In view of the law laid down by the Supreme Court and having regard to the object of Section 3A, we are of the opinion, that Rule 5 cannot be stated to be violative of Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his notified goods was lower than the production determined in Subsection (2), the Commissioner is empowered to determine the actual production, after giving an opportunity to the assessee to produce evidence in support of his claim and re-determine the amount of duty payable to the assessee with reference to such actual production at the rates specified in Sub-section (3). Further, Subsection (5) provides refund of duty paid in excess if the Commissioner finds on the basis of the evidence produced by the assessee in support of his claim taking that actual production was lower than the production determined under Sub-section (2) of the Act. 26. If we look at Rule 5 from another angle, we are further satisfied about the view taken by us. R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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