M.Y.EQBAL, J. - (1.) THE instant writ petitions being W.P. (T) No. 5528 of 2003 has been filed by the assessee and the Tax Cases being Tax Case Nos. 07 of 2003 and Tax Case No. 08 of 2003 have been filed by the Union of India and in all these three cases, the impugned orders have been challenged. Since common questions of law and facts are involved in these cases, they have been heard together and are disposed of by this order.
(2.) IN W.P. (T) No. 5528 of 2003, the petitioner -assessee have prayed for the following reliefs: (a) That this writ petition, under Article 226 of the Constitution of India, is directed against order No. A -1181 -1182/Kol/2002 dated 28.10.2002 (Annexure -10) passed by CEGAT, Kolkata, upholding the demand of duty against the petitioners as confirmed by order -in -original No. 93 -96/Commr/2000 dated 23.11.2000 (Annexure -8) passed by Commissioner of Central Excise, Jamshedpur but reducing the penalty to Rs. 40,00,000/ -. (b) This petition is also against the order No. M -445/KOL/2003 dated 9.7.2003 (Annexure -11) passed by the CEGAT, Kolkata dismissing the application for Rectification of Mistake filed by the petitioners against the aforesaid CEGAT order. (c) This petition also challenges order dated 23.3.98 (Annexure -4) order dated 5.8.999 (Annexure -7) passed by Respondent No. 3 fixing the annual capacity of petitioners first and second furnace respectively as 3 MT. (d) This petition also challenges the validity of provision relating to levy of interest and penalty contained in Rule 96ZO(3) of Central Excise Rules, 1944. In Tax Case No. 05 of 2003, the Revenue -Union of India has challenged that part of the same order dated 28.10.2002 passed by Customs, Excise and Service Tax Appellate Tribunal (in short CEGAT) whereby penalty imposed by the Commissioner of Central Excise has been reduced, whereas Tax Case No. 07 of 2003 has been filed under Section 354 of the Central Excise Act seeking reference of the matter to this Court and also for setting aside the order dated 28.10.2002 passed by the CEGAT reducing the amount of penalty imposed by the Commissioner of Central Excise.
(3.) THE facts of the case lie in a narrow compass: The petitioner M/s. Union Enterprises, Adityapur, Jamshedpur (hereinafter referred to as the assessee) are engaged in the manufacture of Ingots and Billets of non -alloy steel falling under leading 7206.90 and 7207.90 of the schedule of Central Excise Tariff Act, 1985. The said goods manufactured by the said assessee have been specified by Notification No. 30/97 -CE dated 30.8.97 as notified goods on which duty shall be levied in accordance with the provisions of Section 3A of the Central Excise Act, 1944 (in short C.E. Act). The assessee installed two ingots furnaces, one after another, for the purpose of manufacture of Ingots and Billets and non -alloy steel (in short the said goods). The assessee firstly submitted declaration in respect of Annual Capacity of production of furnace. On the basis of said declaration, the Commissioner of Central Excise, Jamshedpur vide his order dated 7.10.1997 and 23.3.1998 provisionally and finally fixed the Annual Capacity of production (in short ACP) of the one furnace of the assessee as 9600 MT. Since the assessee vide letter dated 11.9.1997 opted for payment of duty on the said goods under the provisions of Sub -rule (3) of Rule 96ZO of the Central Excise Rules, the assessee was required to pay Rs. 5 lacs as duty every month. In March, 1999, the assessee installed another furnace and the Commissioner of Central Excise again vide order dated 5.8.1999 determined the ACP in respect of the said furnace at 9600 MT. Since the assessee had opted for discharging duty liability under the provisions of Rule 96ZO, the assessee was required to pay Rs. 10 lacs from March, 1999 in respect of these two furnaces.;