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TMI Blog2018 (9) TMI 573X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, the terminology which should have been used by the Tribunal in paragraph No.4 should have been abatement and not to direct redetermination of ACP of the assessee's factory afresh. In fact, the assessee's case is that during the period factory was shutdown and equipment was dismantled, the question of demanding the duty does not arise. No question of law has arisen for consideration, much less substantial question of law and only thing that requires to be clarified is, on remand, the Commissioner is directed to consider the case of abatement in accordance with Rule 96ZO(3) and other applicable provisions - appeal dismissed. - C.M.A.No.2013 of 2005 - - - Dated:- 24-8-2018 - Mr. T.S. Sivagnanam And THE Mrs. Bhavani Subba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight in directing the Commissioner to take into account the period during which the petitioner's factory was not in operative and the furnaces were not functioning while determining the Annual Capacity of Production (ACP) of the factory afresh? 4. The assessee filed an appeal challenging the Order-in-Original dated 25.04.2003, whereby the Commissioner had confirmed the demand made in the show cause notice to the tune of ₹ 85,76,947/- being the Central Excise Duty payable under Rule 96ZO of the Central Excise Rules, 1944, read with Section 3A of the Central Excise Act, 1944, and confirmed the equivalent amount of the penalty levied. 5. Before the Tribunal, the assessee submitted that they were engaged in the manufacture of M. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he objection raised by the learned Senior standing counsel for the Revenue is that the ACP fixed cannot be altered. In this regard, learned counsel has also referred to a decision of the Hon'ble Supreme Court in the case of Commissioner of Central Excise and Customs Vs. Venus Castings (P) Ltd. [2000 (117) E.L.T. 273(SC)] and another decision in the case of Union of India Vs. Supreme Steels and General Mills [2001 (133) E.L.T. 513 (SC)] . It is submitted that it may be a different case, if the petitioner claims abatement, which also should be considered in terms of the provision under Rule 96ZO of the Central Excise Rules, 1944. 8. Mr.J.Shankarraman, learned counsel for the respondent assessee submitted that the assessee doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as shutdown and equipment was dismantled, the question of demanding the duty does not arise. In this regard, reliance was placed on the decision of the Tribunal in Didar Steel Complex (P) Ltd. Vs. CCE Chandigarh [2003 (54) RLT 537 (CECAT)]. 10. We have perused the memorandum of grounds of appeal filed by the Revenue and we find that there is no ground raised to state that the decision in Didar Steel Complex Private Limited (cited supra) has either been modified or set aside. Thus, we are of the considered view that no question of law has arisen for consideration, much less substantial question of law and only thing that requires to be clarified is, on remand, the Commissioner is directed to consider the case of abatement in accor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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