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TMI Blog2017 (2) TMI 257X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue) could not issue another show cause notice and levy Excise Duty in as much as the earlier proceedings which had attained finality, operate as res judicata - appeal allowed, setting aside the impugned order and remand the matter back to the adjudicating authority to re-determine the duty payable on the basis of actual production - appeal allowed by way of remand. - E/1988 & 1989/2005-EX[DB] - A/70051-70052/2017 - Dated:- 28-9-2016 - Mr. Anil Choudhary, Member (Judicial) and Mr. Anil G. Shakkarwar, Member (Technical) Shri Aalok Arora, Advocate for Appellant Shri Pawan Kumar Singh, Supdt (AR), for Respondent ORDER These two appeals are filed by the appellant assessee against Order-in-Appeal No. 33-CE/APPL/MRT-I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O(3) is in conflict with Sub-section 4 of Section 3A of the Act and it is settled law that where there is conflict between the Section and the Rule, Rule never overrides the Section. This Tribunal remanded the matter for determination of Annual Capacity of Production on the basis of actual production in terms of Section 3A(4) of the Act. This Tribunal further held that the appellant had the option to avail the benefit of Section 3A(4) and accordingly allowed the appeal by way of remand with direction to the authority for examination of the appellant s claim for determination of Annual Capacity of Production (ACP), on actual production basis, under the provisions of Section 3A(4) of the Act. Further, appeal of revenue before the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Tribunal while remanding the case in Final Order No.A/387 - 388/99-NB dated 4th May, 1999 and, therefore, the appellant (that is revenue) could not issue another show cause notice and levy Excise Duty in as much as the earlier proceedings which had attained finality, operate as res judicata. We entirely agree with the aforesaid conclusion arrived at by the Tribunal and find no merits in this appeal. 6. Considered the rival submissions and the pronouncements under similar facts and circumstances of this Tribunal as affirmed by the Hon'ble Supreme Court. We allow these appeals, setting aside the impugned order and remand the matter back to the adjudicating authority to re-determine the duty payable on the basis of actual produc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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