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TMI Blog2018 (2) TMI 920X X X X Extracts X X X X X X X X Extracts X X X X ..... the file of CESTAT, Madras by which the tribunal, dismissed the appeal filed by the revenue and remanded the matter for reconsideration, by the adjudicating authority. 2. Facts relating to the appeal are that M/s.United Bleachers, Nellithurai Road, Mettupalayam, respondent company, is an independent processor of textile fabrics. According to the company, duty liability has been discharged under the compounded levy scheme, prescribed under Section 3A of Central Excise Act, 1944, read with Rule 96 ZQ of Central Excise Rules, 1944. As per Rule 96 ZQ[3] of Central Excise Rules, an independent processor of textile fabrics shall discharge 50% of the amount of duty payable for a calendar month under Sub-Rule [1] of Rule 96 ZQ of Central Excise Rules, 1944 by the 15th of the calendar month and the remaining amount by the end of the calendar month. Further Rule 96 ZQ[5] of Central Excise Rules stipulates that if an independent processor fails to pay the amount of duty or any part thereof by the date specified in rule [3] he shall be liable to; i. Pay the outstanding amount of duty along with interest at the rate of 24% per annum calculated for the out-standing period on the outstand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,87,652/-, for the period from 16.12.1998 to 31.05.2000, under Rule 96ZQ[3], along with appropriate interest, under rule 96ZQ[5][i] and imposed penalty, under rule 96ZQ[5][ii]. Aggrieved by the order the respondent filed an appeal with CESTAT, Madras, [Appeal No.E/1213/01/MAS] [ii] ACP was revised by the Commissioner vide C.No.VI/16/47/2004-Cx.Pol. dt.21.04.2004, for the financial years 1998-99 and 1999-2000 [upto Feb, 2000]. Aggrieved by the same, the respondent has filed an appeal before CESTAT, Madras, on 13.10.2004 [No.E/986/2004] [iii] Contending inter alia that the respondent has failed to discharge the duty liability, as determined under ACP scheme, two SCNs dated 19.06.2001 and 27.07.2001, respectively, have been issued and after, due process of law, the Commissioner of Central Excise, Salem, vide O-I-O N.07/2005 dt.11.02.2005 [C.No.V/52/15/17/2004Cs.Adj], confirmed the demand of interest amounting to ₹ 60,432/- [under Rule 96ZQ[5][i] and Penalty amounting to ₹ 10,36,38,868/- under Rule 96ZQ[5][i], and penalty amounting to ₹ 10,36,38,868/- under Rule 96ZQ[5][ii] [Appeal No.E/308/2005] 7. CESTAT, Chennai, has passed a common order, in the appeals f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y correct when the issue to be decided was penalty of ₹ 73,12,645/- under Rule 96 ZQ (5)(ii) of the Central Excise Rules, 1944 and not determination of duty liability. 10. To substantiate the above substantial questions of law, Mr.A.P.Srinivas, learned senior standing counsel for Customs, Central Excise and Service Tax submitted that CESTAT, Madras, has passed the impugned order, disposing of a set of appeals by remanding the matter to the respective adjudicating authorities, giving directions as detailed below, (i) That the assessee should be given fair opportunity to argue on the facts and evidence borne by record. (ii) That the authority shall also follow the ratio laid down in Triveni Alloys Ltd., Vs. CESTAT, Chennai (2014 (206) ELT 617 (Mad.) and CCE Chandigarh Vs. DOABA Steel Rolling Mills (2011(269) ELT 298 (SC) and provide proper opportunity of hearing, (iii) Wherever abatement is permissible, that shall be allowed by the authority concerned, in accordance with law. (iv) Since the appellants/assessees, have grievance of violation of natural justice, the authority shall do justice to afford reasonable opportunity of hearing to prevent repetitive litig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or it leaves any discretion, either to the authority or to the assessee. As regards penalty is concerned, prior to 28th February, 1999, it was restricted to equal to an amount of duty, outstanding at the end of the month. However, w.e.f. 28.02.1999, the expression, at the end of such month, has been deleted and that the same, has been quantified as equal to an amount of duty outstanding. According to the learned counsel for the appellant, the legislative intent, therefore, is very clear from the amendment to the said Rules is that, it is the discretion left to the authority to alter the amount of penalty. Amount of penalty has been specified, to be equal to the amount of duty, outstanding. He further submitted that in the case in hand, the penalty levied is equal to the amount of duty, outstanding or paid beyond the due date. Thus, considering the provisions of law, there is no case for interference with the O-I-O. 15. Learned counsel further submitted that since the Order-In-Original No.02/2007 dt. 26.02.2007 imposing the interest and penalty under -rule (5) of Rule 96 ZQ was passed, after following earlier directions in Tribunal's final order No.499 to 501/2006 dated 12.06 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever such issues are involved. It is also stated in the Bar that Rule 5 of the Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997 being under challenge before the Hon'ble High Court of Madras in W.A.No.1620/2003 by M/s.Madras Steel Re-Rollers Vs. UOI, the outcome of that judgment be also applied by learned adjudicating authority while they complete readjudication following principles of natural justice the discretion of the Tribunal made by this order. 3. Revenue agreed to aforesaid prepositions. 4. In view of law laid down in aforesaid judgments and agreement of both sides to reduce the dispute expeditiously before concerned adjudicating authority, all the appeals listed in Sl.No.17 to 39 of the cause list (mention) are remanded to adjudicating authority concerned with the following directions:- (i) Ld. authority shall grant fair opportunity of hearing to appellants to argue on the facts and evidence borne by record and no fresh evidence shall be entertained. (ii) The authority shall also follow the ratio laid down in the following judgments and the appellant shall have proper opportunity of hearing on the basis of the ratio laid down in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench is extracted hereunder. Learned counsel for the respondents states that there is no transfer petition pending before the Honurable Supreme Court. On the other hand, a Division Bench of the Karnataka High Court in W.A.No.331 of 2006 and connected matters decided on 27.09.2013 has repelled the challenge to Rule 5 of Hot Rerolling Steel Mills Annual Capacity Determination (Amendment) Rules, 1997, has not made ultra vires and contrary to Section 3-A of the Central Excise Act, 1944, and thus learned counsel for the appellant states that the same deals with no scope to press the present appeals. 2. In view of the aforesaid submission, the writ appeals are dismissed in view of the judgment referred to aforesaid. 20. Inasmuch as, before CESTAT, Madras, both the learned counsel for the parties have agreed for remand to the adjudicating authority for redetermination of duty liability, we are not inclined to accept the contention of Mr.A.P.Srinivas, learned senior standing counsel for Customs, Central Excise and Service Tax and accordingly, substantial question No.1 is answered in the negative as against the revenue. 21. Taking note of the decision of the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X
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