M.M. Kumar, J. - (1.) THE instant appeal filed under Section 35G of the Central Excise Act, 1944 (for brevity 'the Act') is directed against final order dated 16.06.2010 (A -2), passed by Customs, Excise and Service Tax Appellate Tribunal, New Delhi, (for brevity 'the CESTAT'). The question of law raised in the instant appeal is as follows: Whether Rule 5 of the Hot Re -rolling Steels Mills Annual Capacity Determination Rules, 1997 (for brevity '1997 Rules') would apply to a case where a manufacturer had made changes in installed machinery or any part thereof after seeking approval of the Commissioner of Excise in terms of Rule 4(2) of 1997 Rules?
(2.) IN order to put the controversy in its proper perspective, few facts would be necessary. M/s Hans Raj Steel Rolling Mills -respondent were engaged in the manufacture of hot re -rolled products of non -alloy steel during the period from 01.09.1997 to 31.03.2000. They were charged to duty under Section 3A of the Central Excise Act, 1944 and had opted to pay duty under Rule 96ZP(3) of the Central Excise Rules, 1944 (for brevity 'the Rules'). For the determination of annual capacity (ACP), respondent had declared the parameters of their mill. However, one of the important parameters 'D' was changed w.e.f. 11.12.1998 after obtaining permission from the competent authority. As per the formula envisaged by Rule 3 of the 1997 Rules, the ACP of the unit was fixed at 3355.005 MT from 01.09.1997 to 10.12.1998 and 981.952 MT for the period commencing from 11.12.1998 to 31.03.2000 provisionally. It was finalized by the Commissioner vide order dated 27.04.1998 by re -determining the same as 3355.00 MT from 01.09.1997 to 10.12.1998 and 1890 MT from 11.12.1998 to 31.03.2000. The order dated 27.04.1998 was challenged by the respondent and vide final order dated 29.06.1998, the CESTAT remanded the case to the Commissioner. The Commissioner in order in original observed that respondent had changed the parameter w.e.f. 11.12.1998 after obtaining permission from the Commissioner and according to changed parameter, the capacity of the respondent was reduced. The Commissioner placed reliance on a judgment of the CESTAT in the case of M/s Sawan Mal Shibu Mal Steel Rolling Mills v. CCE Chandigarh : 2001 (127) ELT 46 (Tri. -LB) and concluded that the provisions of Rule 5 of the 1997 Rules, which postulates payment of lump sum amount, were not applicable to determine the ACP. Feeling aggrieved, the appellant filed an appeal before the CESTAT, which has reiterated the view taken by the Commissioner. The CESTAT placing reliance on the judgment of this Court in the case of CCE v. Doaba Steel Rolling Mills, 2003 (54) ELT 142 held as under: 6. Undisputedly, the Larger Bench has held that when the change of machinery leads to reduction in annual capacity, the said rule would not apply. It is not in dispute that the said ruling has not been set aside by any of the High Court or Apex Court till this day. Being so, as pointed out by ld. Advocate for the respondents the law on the point is very clear that in case of change in machinery leading to reduction of annual capacity, the provisions of Rule 5 could not be attracted. The reduction has resulted on account of changes brought in the machinery. It is also to be noted that when factually the production can be ascertained, the question of applying the deemed principles comprised under Rule 5 cannot arise. Though it is contended that the decision of Hon'ble Punjab & Haryana High Court has been challenged before the Apex Court, admittedly, there is no stay granted to the said decision. Accordingly, we do not find any reason for interference in the impugned order and hence the appeal fails and is hereby dismissed. (Emphasis added) Mr. H.P.S. Ghumman, learned counsel for the Revenue has vehemently argued that question of law is no longer res integra and stands finally settled by a judgment of Hon'ble the Supreme Court in the case of Commissioner of Central Excise Chandigarh v. Doaba Steel Rolling Mills : 2011 (269) E.L.T. 298 (S.C.) and argued that the judgment of this Court on which the CESTAT has placed reliance in fact stand reversed by Hon'ble the Supreme Court. Therefore Rule 5 of the 1997 Rules would apply and despite the change in the parameter of installed capacity, the respondent has to pay in accordance with the provisions of Rule 5 of 1997 Rules.
(3.) MS . J. J. Kaur, learned counsel for the respondent has however, submitted that there are other appeals pending before Hon'ble the Supreme Court and instant appeal may be adjourned. She has further submitted that even a review has been filed against the judgment of Hon'ble the Supreme Court in Doaba Steel Rolling Mills's case (supra) and therefore, the judgment of Hon'ble the Supreme Court cannot be regarded as final view on the issue.;