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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 ..... 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 Rs. 30 per sq.mtr Duty @ 12.8 of the capacity of production (in value terms) equivalent of Rs. 1.50 lakh per chamber per month b Where average value of processed fabric is upto Rs. 30 per sq.mtr Duty @ 12.8 of the capacity of production (in value terms) equivalent of Rs. 2 lakh per chamber per month 2. Accordingly, the provisional fixation of capacity of the notice was ordered vide Order dated 21.01.1999 by the jurisdictional Commissioner at Rs. 703.20 lakh and the appellant was required to pay duty @ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd in person to the appellant, who was to have liberty to produce evidence in support of their contention that the length of gallery/closed space is not to be taken into account while determining the annual capacity of production under the Rules. 5. In the mean time, the appellant filed Writ Petition No.8852 of 1999 before Hon'ble Delhi 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 Later on, the Hot Air Stenter Independent Textile Processors Rules, 1998 were superseded with Hot Air Stenter Independent Textile Processors Annual Capacity Dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal observed that both the sides agree that the Commissioner in the impugned order has not considered the appellant s request for re-determination of their duty liability under Section 3A (4) on the basis of their actual production. The only reason given for this by the Commissioner is that the company is under BIFR and such the re-determination of their duty liability on actual basis is not warranted at this stage. The Tribunal held that "In our view the reason given by the Commissioner for determining assessee s duty liability under section 3A (4) is not correct as and when the appellant had made a request for re-determining their duty liability for the period of dispute on the basis of actual production and there is such a provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able with reference to the said re-determined production as Rs. 1,45,80,266/- (Rs.One crore Forty five Lacs Eighty Thousand Two Hundred Sixty Six only) for the period 16.12.1998 to February, 2001. (iii) As it is found that out of total amount Rs. 1,45,80,266/-, Rs. 70,78,502/- have already been paid by the assessee, I order that the remaining balance of Rs. 75,01,764/- (Rs. Seventy Five Lacs One thousand Seven Hundred Sixty Four Only) be paid forthwith by the assessee M/s.Haryana Textile Corporation Ltd, Plot No.97, Sector 25, Ballabhgarh, Faridabad along with interest at applicable rates under Section 11AA of Central Excise Act, 1944 as amended from time to time, for the period from the date on which it had become due till the date of pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the relevant notification NO.19/2000-CE dated 1.3.2000, I find that the relevant factors for determination of rate of duty for the period on or after 1.04.2000 were: (i) the per sq.mtr value of the processed fabrics; and (ii) Whether the duty was paid on compounding basis or whether the option for re-determination of production on actual basis was retained." 15. As for interest liability on the appellant, who admittedly were a sick company under BIFR, we are in agreement with the Ld. Advocate that the interest liability cannot be imposed on the appellant. In this regard, reliance has been placed on the judgment of this Tribunal in the case of Andhra Cements Limited (supra) wherein this Tribunal has held as below: "5.5 In view o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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