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TMI Blog2019 (1) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... e without taking into account factor of electricity is utterly perverse? - Held that:- There is really no reason to hold that the Assessee had indeed challenged the determination of the annual production capacity on account of power cuts/power outages and this consideration was not taken into account by the Commissioner or the CESTAT. The Memo of Appeal before the CESTAT has not been produced for our perusal. Even assuming that there was any ground in the Memo of Appeal, it does not appear that such a ground was pressed before the CESTAT - The Memo of Appeal before the CESTAT has not been produced for our perusal. Even assuming that there was any ground in the Memo of Appeal, it does not appear that such a ground was pressed before the CESTAT. When documentary evidence clearly shows of restricted supply to the Appellant/manufacturer unit during the disputed period for a continuous period of more than seven days, whether abatement as provided in sub clause (3) of Section 3A deniable ? Whether finding of the Tribunal in this regards is perverse? - Held that:- Rule 96ZO(2) provides that where a manufacturer does not produce the ingots and billets of non-alloy steel during any conti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. The challenge in this appeal is to the Judgment and Order dated 8 October 2015 made by the Customs, Excise and Service Tax Appellate Tribunal, (CESTAT) in Appeal No.E/1691/05. 5. Mr. Rajiva Srivastava, the learned Counsel for the Appellant submits that there is no substantive provision under the Central Excise Act, 1944 (said Act) for levy of interest, when it comes to payment of excise duty under Section 3A of the said Act. Therefore, Rule 96 ZO of the Central Excise Rules, framed in pursuance of the powers conferred under Section 3A of the said Act, to the extent such rule provides for levy of interest, is ultra vires the parent Act. He submits that in fact, this has been held so by the Honourable Apex Court in the case of Shree Bhagwati Steel Rolling Mills vs. Commissioner of Central Excise 2015 (326) ELT 209 (SC). He, therefore, submits that the first substantial question of law is liable to be answered in favour of the Assessee and the impugned Orders, to the extent they levy or confirm the levy of interest, are liable to be set aside. 6. Mr. Srivastava submits that in the present case, the annual production capacity of the Appellant's unit came to be determi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uts/power outages, is to be upheld, then, that would amount to permitting the Assessee to resort to a hybrid procedure, which is clearly not permissible. She relies on Commissioner of Central Excise Customs vs. Venus Castings (P) Ltd. (2000) 4 SCC 206 and Union of India and ors. vs. Supreme Steels and General Mills and ors. (2001) 9 SCC 645 in support of this contention. 10. She further submits that in any case, in the present proceedings the Assessee had never challenged the determination of the annual production capacity which was worked out by the Authorities in accordance with law. She submits that this is clearly recorded in the impugned Order. She submits that the statements reflected in the impugned Order cannot be questioned before the higher Courts, but will have to be taken as correct unless, the very same authority amends or modifies the same. Even, otherwise, Ms. Dessai submits that it is very clear in the present case that the determination of the annual production capacity was never challenged by the Assessee. On these basis, Ms. Dessai submits that the second substantial question of law neither arises in the present Appeal, nor is the same required to be dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... afford of personal hearing, by order dated 12/02/2004, confirmed the demand with interest and further imposed penalty upon the Assessee. 16. The Assessee, aggrieved by the order dated 12/02/2004 appealed to the CESTAT vide Appeal No. E/1691/05. This was disposed of by the impugned order dated 8 October 2015. The CESTAT confirmed the demand with interest, but, set aside the penalty imposed by the Commissioner of Central Excise. The Assessee has, therefore, instituted the present Appeal against the impugned order dated 8 October 2015 to the extent the same upholds the demand along with interest. 17. In so far as the issue of levy of interest is concerned, the Appellant is entitled to succeed on the basis of the ruling of the Honourable Apex Court in Shree Bhagwati Steel Rolling Mills (supra). 18. In the present case, the interest upon short payment was demanded and levied on the basis of the Rules which did make provision for payment of interest. However, in the case of Shree Bhagwati Steel Rolling Mills (supra), the Apex Court held that such Rules were ultra vires the parent Act since, in the parent Act there was no provision for demand or levy of interest. 19. The rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 96-ZP of the Central Excise Rules stipulates the method of payment and Rule 96-ZP contains detailed provision regarding time and manner of payment and it also contains provisions relating to payment of interest and penalty in the event of delay in payment or non-payment of dues. Thus, this is a comprehensive scheme in itself and general provisions in the Act and the Rules are excluded. [Emphasis supplied] 20. Taking into consideration the aforesaid legal position, the Commissioner of Central Excise was obviously not right in demanding the interest from the Assessee and that the CESTAT was also not right in confirming the demand for interest. To that extent, the impugned judgment and order warrants interference. 21. In so far as the second substantial question of law is concerned, the CESTAT, in paragraph 5.2 of its order dated 8 October 2015, has very clearly recorded that the production capacity worked out by the Authorities was not being challenged by the Assessee in the appeal before the CESTAT. There is really no reason to hold that the Assessee had indeed challenged the determination of the annual production capacity on account of power cuts/power outages and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of closure or on the date of closure; (b) the manufacturer shall intimate the reading of the electricity meter to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, with a copy to the Superintendent of Central Excise, immediately after the production in his factory is stopped along with the closing balance of stock of the ingots and billets of non-alloy steel; (c) the manufacturer, when he starts production again, shall inform in writing about the starting of production to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, with a copy to the Superintendent of Central Excise, either prior to the date of starting production or on the date of starting production; (d) the manufacturer shall on start of production again along with the closing balance of stock on restarting the factory, intimate the reading of the electricity meter to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise 2003 (159) ELT 147 (Kar.), with a copy to the Superintendent of Central Excise; (e) the manufacturer shall while sending intimation under clause (c), declare that his factory re ..... 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