Rajendra Babu, J. - (1.) These appeals are filed under Section 35-L(b) of the Central Excise Act, 1944 (hereinafter referred to as 'the Act'). The background facts leading to these appeals are that the manufacturer, who is a respondent herein, having availed of the procedure for payment of duty under the Act in terms of Rule 96ZO(3) of the Central Excise Rules cannot claim the benefit of Section 3A(4) for determination of actual production and re-determination of amount of duty payable by him with reference to the actual production at the rates as specified in the said Section. Earlier on several occasions when the matter reached the Tribunal the view taken is that the Collector (Appeals) had to follow the orders made by the Tribunal and the order made by the Collector is not in accordance with law inasmuch as no duty is payable by the manufacturer otherwise than on actual production and clearance and no demand of duty could be made or recovered on the basis of production capacity alone without verification. In case of M/s. Minakshi Castings (P) Ltd., one of the respondents before us, it is held that the right vested in the assessee under Section 3A(4) cannot be denied on the ground that he had opted for payment of duty under Rule 96ZO(3). The matter is remanded to the Commissioner for determination of the actual production and re-determination of duty liable to be paid with reference to the actual production in accordance with the provisions of Section 3A(4). Hence these appeals.
(2.) In another batch of matters writ petitions have been filed before the High Court of Delhi and certain orders have been obtained thereto at the interim stage which are subject matter of another appeal before us and in those circumstances the Delhi High Court had ordered that "it will be open to the manufacturers to submit application on the basis of actual production and, if any such application is submitted, the same shall be duly considered by the competent authority in accordance with the Rules."
(3.) Now we are informed at the bar that the very questions arising in the cases before us stand referred to a Larger Bench by the Tribunal for deciding (i) whether there is any conflict between the provisions of sub-section (4) of Section 3A of the Act and sub-rule (3) of Rule 96ZO of the Central Excise Rules , and (ii) whether a manufacturer who has exercised, the option to make payment of amount based on total furnace capacity installed in his factory under sub-rule (3) of Rule 96ZO and not on the basis of annual capacity of production can make an application for determining the actual production during the period his aforesaid option is in operation;