Jawahar Lal Gupta, J. - (1.) THE Commissioner of Central Excise has filed this petition under Section 35H(1) of the Central Excise Act, 1944. It is claimed that the following two questions of law arise out of the order dated April 6, 2000 passed by the Customs, Excise & Gold (Control) Appellate Tribunal. "(i) Whether even in the event of change in any of the parameters of the Hot re -rolling Mills as prescribed in Sub -rule (2) of Rule 4 of the HRSMACD Rules the annual capacity will still not be determined in terms of Formulae as prescribed in the Sub -rule (3) of Rule 3 of the HRSMACD Rules? And further (ii) Whether when the annual capacity so re -determined under Sub -rule (3) of Rule 3 of the HRSMACD Rules is still less than actual production of 1996 -97, would no provision of Rule 5 of the HRSMACD Rules come into operation -
(2.) A few facts may be noticed. Respondent No. 1 is engaged in the manufacture of hot rolled products. For the year 1996 -97 the annual capacity of production of the Unit was fixed as 11961.135 Metric Tons. This was done vide order dated January 5, 1998. The respondent applied to the Commissioner for grant of permission to change the parameters in terms of the provisions contained in Rule 4(2) of the Hot Re -rolling Steel Mills Annual Capacity Determination Rules, 1997. The permission was granted. On the basis of the changed parameters, the annual capacity came to 7328.435 Metric Tons, as per the formulae provided under Rule 3(3) of the Rules (ibid). However, the Commissioner vide order dated January 27, 2000 re -fixed the annual capacity of production as 11961.135 Metric Tons. A copy of the order is at Annexure P1.
(3.) AGGRIEVED by the order, the respondent filed an appeal before the Tribunal. On examination of the matter, the Tribunal found that in a case of re -determination of the annual production capacity on the basis of changed parameters, the provisions of Rule 5 were wrongly invoked by the Commissioner. Thus, the appeal was accepted. Hence this petition for reference.;