9911796707
TMI Blog2016 (11) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority, with certain observations and directions. 2. Facts deduced from the material on record are that M/s. Arun Vyapar Udyog Ltd., respondent herein, are the manufacturers of CTD bars, falling under Chapter heading 72 of the Central Excise Tariff Act, 1985. They had opted for payment of duty, under Compounded Levy Scheme, in terms of Section 3A of the Central Excise Act, 1944, r/w. Rule 96ZP(3) of the Central Excise Rules, 1944, in terms of Hot Re-rolled Mills Annual Capacity Determination Rules, 1997 (HRMACD Rules, 1997). On the basis of the assessee's letter and upon the visit of the factory by the Central Excise Officials for verification and also based on the technical opinion of Dr.L.Vijayaraghavan, Professor in IIT, the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tune of Rs. 1,82 Crores, under Rule 96ZP(3) of the Central Excise Rules, 1944. 5. Being aggrieved by the Order-in-Original No.16 of 2001 and 5 of 2002, the assessee preferred an appeal, before the CESTAT and the Tribunal, vide Final Order Nos.362 and 363 of 2005, dated 09.03.2005, ordered as follows: "7. After carefully examining the submissions, we find that the appellants have a valid challenge against the demand of duty. Admittedly, the demand is squarely based on the ACP as communicated by the Assistant Commissioner to the assessee. That ACP was set aside by this Tribunal and hence, could not have been valid basis for a demand of duty on the assessee. The ACP determined by the Commissioner under Rule 5 of the ACD Rules, 1997 is the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ters. But he certified it to be of the 'batch type' after a second verification of parameters. We are at a loss to comprehend as to how an expert of the stature of Prof.L.Vijayaraghavan can take such a volte face without stating cogent reasons for it. Suffice to say that the expert, by this conduct, brought discredit to both the reports. In this backdrop, we agree with the counsel's suggestion that a second opinion be obtained and considered by the Commissioner. Again, the Commissioner, having accepted the change of parameters, ought to have reckoned the same in the matter of determination of ACP. The case law cited by counsel supports this position. On these two grounds, we have to send the case back to the Commissioner for fre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tanding Counsel for the appellant submitted that the finding of the Tribunal that since ACP was set aside by its first remand order and there is no valid basis for demand of duty, is incorrect, as the Tribunal, in the first remand order, only asked the Commissioner to pass a speaking order, in fixing the ACP, without setting aside the ACP fixed, which the Commissioner had complied with, and therefore, the demand notices remain valid. 8. Regarding the type of furnace in the factory, learned Senior Standing Counsel appearing for the appellant submitted that the Tribunal, while accepting the suggestions of the assessee's counsel, at Paragraph 8, held that a second opinion has to be obtained and considered by the Commissioner, which is inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of High 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. In other respects, the Apex Court upheld the scheme. In the light of the above reported decision, the case of the revenue, regarding penalty, has to fail. 11. Insofar as the contentions raised in C.M.A.No.2856 of 2005, perusal of the common order of the Tribunal shows that all the contentions raised have been dealt with in detail, and answered accordingly. We do not find that the orders impugned before us, require any interference. A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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