9911796707
TMI Blog2016 (10) TMI 569X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals). The said Unit which was formally controlled and managed by M/s Bhuwalka Steel Industries Ltd has been taken over as a going concern along with the assets and liabilities by Deccan Alloys Pvt Ltd., the applicant herein in the year 2008 pursuant to the sale deed dated 26.09.2006. The new entity has also been registered under the Central Excise Act and has also been accepted by the Registrar of Company by issuing a certificate. In view of these facts, the application is allowed and the cause title is changed from Bhuwalka Steel Industries Ltd to Deccan alloys Pvt Ltd., 2. The appellant has filed four appeals. The issue involved in all the four appeals is common and therefore all the four appeals are being disposed of by a common orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the financial year 1996-97, then, the annual capacity so determined in respect of the said mill was deemed to be equal to the actual production of the mill during the financial year 19967-97. The appellant were issued a show-cause notice proposing to demand total differential duty amounting to Rs. 2,12,40,994/- for the period from September 97 to March 2000. Based on the annual capacity of production determined by the Commissioner of Central Excise Bangalore and in some of the show-cause notices even the penalty was also proposed along with interest. Appellant filed a reply to the show-cause notice, controverted the allegations in the show-cause notice and the Assistant Commissioner vide his order dated 15.01.2001 confirmed the demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under:- Appeal No. Production capacity determination order and date Production capacity determined applying Rule 5 Production capacity as per formula in Rule 3(3) E/835/2002 and E836/2002 C. No. IV/16/1302/97-TECH Part III dated 23.12.1997 3,797.561 MT 1447.471MT E/1019/2002 C.No. IV/16/1302/Pt.III Tech dated 23.12.1997 37,448.514MT 14,027.55MT E/94/2003 C.No. IV/16/1302/Pt.III Tech dated 23.12.1997 37,448.514MT 14,027.55MT E/94/2003 C.No. IV/16/4/97TECH (Pt.III)/202 dated 08.03.2000 48,127.15MT 19,139.981MT Learned counsel for the appellant submitted that while passing the annual capacity determination order, the Commissioner has fixed the annual production capacity by invoking provisions of Rule 5 of the Hot Re-rol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... civil appeals are pending before the Hon'ble Supreme Court. The learned counsel further submitted that the issue involved in the said civil appeals pending before the Hon'ble Supreme Court has a direct bearing on the differential duty demand involved in the present appeals and if the said civil appeals are allowed by the Hon'ble Supreme Court, then the said demand for differential duty will not arise. Therefore he prayed that any order passed by the Tribunal should be subject to the outcome of civil appeals pending before the Hon'ble Supreme Court. He also submitted that with regard to demand for interest and penalty imposed in the aforesaid appeals which has been imposed under Rule 96ZP of the Central Excise Rules 1944, the Hon'ble Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, then that has to be taken as the annual capacity for the financial year 1997-98 and the subsequent years. This rule, it seems, was introduced keeping in view the fact that without there being any change in the plant and machinery, including man power, there should not be any reason why factory should have more production in 1996-97 than 1997-98. In other words, without there being any change in the plant and machinery and the other infrastructure including man power, if class A manufacturer in 1996-97 could produce 150 bars/rods in 1997-98 unless there is a reason and the evidence in support thereof and if there is any such reason or evidence the manufacturer can take recourse to sub-section (4) of Section 3A of the Act. It was also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeals are pending before the Apex Court against the judgment of the Karnataka High Court, then while covering this petition by the judgment in the case of Meenakshi Steel (supra), it may be observed that the outcome of the pending SLP before the Apex Court would apply to these cases also so as to avoid multiplicity of litigation." Since the matter is pending before the Hon'ble Supreme Court for final determination, regarding the constitutional validity of Rule 5, of the Hot Re-rolling Mills Capacity Determination Rules 1997 we dispose of the present appeals by observing that the outcome of the pending appeals before the Apex Court would apply to these cases also so as to avoid multiplicity of litigation as held by the Hon'ble High C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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