- (1.) In this petition under Article 226 of Constitution of India, the petitioner is aggrieved of the omission of respondent No. 1 to redetermine the actual production of excisable goods in petitioner's factory in terms of Section 3A(4) of Central Excise Act, 1944 and the insistence of the respondents for payment of duty in terms of earlier determination, which does not legally survive.
(2.) We have heard Shri Pankaj Bhatia, learned Counsel for the petitioner and Shri G.R. Gupta, learned Counsel for the respondents.
(3.) The petitioner is engaged in the manufacture of the excisable goods i.e., M.S. Ingots/Runner Riser. Section 3A of the Act conferred power on the Central Government to determine the excise duty on the basis of the capacity of the production in respect of such goods. Sub-section (2) of Section 3A, authorises the Commissioner to determine the actual capacity of production and the duty payable. In terms of Section 3A(2) the Commissioner fixed the annual production capacity at 16000 M.T. and the duty payable at Rs. 8,33,333/- per month. This was communicated to the petitioner through a letter dated 30-9-1999, a copy of which is Annexure I to the writ petition. The petitioner filed an appeal against the said order before the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi and the said appeal was allowed by the Tribunal vide order dated 26-5-1998, whereby the Tribunal set aside the Commissioner's order and remanded the matter back to him for afresh determination, after providing the tax payer an opportunity to be heard in person. The Commissioner then passed a fresh order dated 11-1-1999 taking the view that the petitioner had opted for the payment of duty at lumpsum fixed under Rule 96ZO(3) and therefore, it was not entitled to get the annual production re-determined under Section 3A(4) of the Central Excise Act. The petitioner again went in appeal to the Tribunal and by the order dated 29-6-1999 the Tribunal set aside the Commissioner's order and directed him to re-determine the actual production in terms of Section 3A(4) of the Act. The Tribunal took the view that Section 3A(4) overrides the provisions of the aforesaid rule.;