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TMI Blog2016 (11) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Courts, which struck down Rules 96ZO, 96 ZP and 96 ZQ of the Central Excise Rules, 1994, relating to penalty, as ultra vires of a parent Act and violative of Articles 14 and 19(1)(g) of the Constitution of India. Insofar as penalty is concerned, the Hon'ble apex Court held that it is ultra vires - Appeal dismissed. - C.M.A.Nos.2855 and 2856 of 2005 - - - Dated:- 19-8-2016 - MR. S.MANIKUMAR MR. D.KRISHNA KUMAR, JJ. For Appellant : Mr. A.P. Srinivas, Senior Standing Counsel For Respondent : Mr. K. Jayachandran COMMON JUDGMENT (Judgement of this Court was made by S.MANIKUMAR, J. ) Civil Miscellaneous Appeals are directed against the order of the Customs Excise and Service Tax Appellate Tribunal, Chennai, dated 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red Appeal No.E/COD/568 99 E/1788/99, before the CESTAT, Chennai. The said appeal came to be disposed of, in Final Order No.655 of 2000, dated 16.05.2000, remanding the matter to the Commissioner of Central Excise, for denovo consideration, with a direction to re-fix the ACP, through a speaking order. 4. Subsequently, the Commissioner, after following due course of law, passed Order-in-Original No.16 of 2001 in C.No.V/72/30/38/2000 CLS - Tech, dated 30.08.2001, fixing the ACP of the assessee as 34,693.43 MTs., and also adjudicated the show cause notices, issued from September' 1997 to March' 2000 and demanded the differential duty payable to the tune of ₹ 1.82 Crores. Further, the Commissioner in Order-in-Original No.5 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -cause notices issued prior to determination of ACP by him. 8. We find that Ld. Commissioner has treated the appellants' furnace to be of the pusher type, relying on the first verification report of Prof.L.Vijayaraghavan of IIT, Madras. That was a report submitted by Prof.L.Vijayaraghavan after verifying the parameters of the furnace in the presence of the jurisdictional Assistant Commissioner of Central Excise. We may contextually mention that the assessee themselves had declared their furnace as of the pusher type in their declaration fixed in 1997. Prof.L.Vijayaraghavan gave a contrary opinion, as to the type of the furnace in his second verification report. This opinion has been considered but rejected by the Commissioner. Prof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the same, the appellant has preferred the present Civil Miscellaneous Appeals. Record of proceedings shows that on 05.10.2005, both the appeals have been admitted on the following substantial questions of law, (1) Whether the Tribunal is correct in holding that the demand notices are not valid as the ACP order was set aside by the Tribunal in the first remand order where in the Tribunal has only asked the Commissioner to issue a speaking order in fixing the ACP? (2) Whether the Tribunal is correct in directing that a second opinion be obtained and considered by the Commissioner, especially when the expert Sri.L.Vijayaraghavan, Professor of IIT gave a verification certificate, dated 02.09.1997 as a member of committee and gave a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee, by following a decision made in M/s.Kanishk Steels Industries Ltd., v. CCE [Final Order Nos.1083 to 1086 of 2004, dated 16.12.2004], wherein, it has been held that since the parameters have changed, the ACP cannot be fixed, by invoking Rule 5 of the HRMACD Rules, 1997 and should be determined afresh. Heard the learned counsel for the parties and perused the materials available on record. 10. Two issues are involved in the present appeals. One relates to penalty. The Tribunal, while directing the Commissioner to fix the ACP, has set aside the penalty also. Penalty, as such, cannot be imposed, in the light of the decision of the Hon'ble Supreme Court in Shree Bhagwati Steel Rolling Mills v. Commissioner of Central Excise rep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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