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TMI Blog2018 (1) TMI 1161X X X X Extracts X X X X X X X X Extracts X X X X ..... yable on the basis of actual production, the adjudicating authority has correctly upheld the demand - demand of duty upheld. Liability of interest - appellant were a sick company under BIFR - Held that: - since the appellant were a sick company, the interest liability cannot be imposed on the appellant. Appeal allowed in part. - Appeal No.E/83/2016 - FINAL ORDER NO. 62208/2017 - Dated:- 12-12-2017 - Mr. Ashok Jindal, Member ( Judicial ) And Mr.Devender Singh, Member ( Technical ) For the Appellant: Shri S.C.Kamra, Advocate For the Respondent: Shri A.K.Saini, AR ORDER Per : Devender Singh The brief facts of the case are that the appellant are engaged in processing of Cotton Fabrics and Man-Made Knitted Fabrics with the aid of Hot Air Stenters as an independent textile processor. With effect from 16.12.1998, the mode of levy of central excise duty liability of independent textile processors of Chapter 52, 54, 55 60 was vide Notification No.36/98-CE (NT) dated 10.12.1998 fixed on compounded levy basis under Section 3A of the Central Excise Act, 1944 as under:- a Where average value of processed fabric is upto ₹ 30 per sq.mtr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i High Court challenging the issuance of notification implementing the compounded levy on independent textile processors. The said writ petition got dismissed in default for non-prosecution by Hon ble Delhi High Court vide order dated 12.05.2005. 6. Later on, the Hot Air Stenter Independent Textile Processors Rules, 1998 were superseded with Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules, 2000 vide Notification No.14/2000-CE (NT) dated 01.03.2000 whereunder the length of galleries was excluded from the purview of determination of annual capacity of independent textile processors. 7. The central excise duty liability of the appellant was determined in terms of the law prevalent at the relevant time, on the basis of various declarations filed by them from time to time during the relevant period, as under: Period Duty Fixation Order dated Duty fixed (Rs.) 16.12.1998 to 31.121998 26.04.1999 4,15,017/- January, 99 to December, 99 do 9649,1521- @ 8,04,096/- per month ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the directions that the Commissioner shall consider the evidence and data provided by the appellant. 10. Pursuant to the order of Tribunal dt.8.4.2015, the Commissioner has passed the following order:- (i) In exercise of the powers conferred under sub-section (4) of Section 3A of the Central Excise Act, 1944 (as in force at the relevant time), I re-determine the production of M/s.Haryana Textile Corporation Ltd., Plot No.97, Sector-25, Ballabhgarh, Faridabad for the period 16.12.1998 to 28.02.2001 as given in the following table:- Sl No. Commodity Period Actual Re-Determined Production (in sqm.) 1. Woven Cotton Fabric(Chapter 52) 16.12.98 to Feb.2000 1334490.75 2. Woven Cotton Fabric(Chapter 52) March,2000 to Feb.2001 1268208.19 3. Woven Manmade Fabric (Chapter 55) 16.12.98 to Feb. 2000 2327004.25 4. Woven Manmade Fabric (C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndings in the order of the adjudicating authority. 13. Heard rival submissions and perused the record. 14. We find that the adjudicating authority had called for a factual report from the concerned Assistant Commissioner of Central Excise Division. In the said report, it is categorically mentioned that the appellant had exercised their option for re-determination of duty payable on the basis of actual production under sub- section (4) of Section 3A of the Central Excise Act, 1944. The contention of the appellant that the determination of actual production was done as per their statutory right under sub-section (4) of Section 3A and not in terms of option exercised by them is complete misreading of clauses of Section 3A and aforesaid notification. The said notification has been issued under sub-section (3) of Section 3A to specify the rate of duty. Accordingly, the rates of duty have been specified. The notification envisages two situations wherein the processor who wants to retain option of re-determination of duty or forgoes the re-determination of duty payable on the basis of actual production. Hence, the notification is to be read in conjunction along with Section 3A and n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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