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TMI Blog2022 (1) TMI 447X X X X Extracts X X X X X X X X Extracts X X X X ..... ustice is not in jeopardy if the directions of the learned Commissioner are sustained. However, since the matter pertains to the period September, 1997 to March, 2000 and redetermination of duty has been directed, vide M/S RHL PROFILES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, KANPUR [ 2017 (8) TMI 1092 - CESTAT ALLAHABAD] , and such finalisation has not taken place till date. Accordingly, the jurisdictional Deputy/ Assistant Commissioner sre directed to comply with the directions of this Tribunal as contained in Final Order M/S RHL PROFILES LTD. and to determine the duty payable on actual production basis, at the rates specified under Section 3A (3) of the Central Excise Act, 1944, within a period of 12 weeks, from the date of service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 Annual production capacity of the three units of the Appellant provisionally determined on the basis of an undated declaration, alleged to be filed by Appellant on 1.8.1997. Order-in-Original dated 24.09.1997 was challenged by Appellant before this Hon ble Court, but during the pendency of appeal, annual production capacity was finalised vide Order-in-Original dated 17.2.1998 and hence appeal was dismissed as withdrawn by this Tribunal vide order dated 14.08.2000. 4. 26.4.1999 Order-in-Original dated 17.2.1998 was challenged by Appellant before the Hon ble Court and matter was remanded back for fresh decision after providing opportunity of hearing to A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of actual production, taking into account the returns filed by the appellant and allow adjustment of duty already deposited. We also direct the appellant to appear before the Adjudicating Authority with a copy of this order and seek the determination of duty in terms of this order. 2. In remand proceedings, the learned Commissioner, vide impugned order-in-original dated 9.10.2017, remanded the matter to the Deputy/ Assistant Commissioner of Central Excise, holding as follows:- In view of my findings, as discussed and detailed above, I am in agreement with the direction of Hon ble CESTAT that the party is entitled for payment of duty under the normal scheme of Section 3 of Central Excise Act, 1944 and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty payable by the assessee with reference to actual production at the rate specified in sub-section (3). Thus, Section 3-A(4) provides for determination of actual production and re-determination of duty payable by Commissioner of Central Excise only and not by any other officer. Further, the words Commissioner of Central Excise used in Section 3 A(4) does not include sub-ordinate officers such as Deputy or Assistant Commissioner. B. Learned Commissioner cannot delegate his powers to officers junior to him, in absence of any such power in the statute. Apex Court, in the case of M. Chandru Vs Member Secretary (2009) 4 SCC 72, held that delegation is permissible only when there is provision in the statute. C. Reasons given by le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. Having considered the rival contentions, we find that the impugned order passed by the ld. Commissioner is not contrary to the Final Order of this Tribunal dated 10.01.2017, wherein the issue was remanded to the Adjudicating Authority (Commissioner). Learned Commissioner has only remanded the matter to the jurisdictional Deputy/ Assistant Commissioner observing that the relevant documents are not readily available before him. Section 3 A(4) (supra) is followed as the commissioner has decided the issue in principle and remanded the matter simply, only for the purposes of calculation of the duty payable. He exercised the quasi-judicial powers in terms of Section 3 A (4) (supra) and administratively, directed his subordinate to calculate t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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