Haryana Textile Corporation Ltd vs Cce, Delhi-Iv

[Arising out of O-in-O No.21/PKJ/Adjn/2008 dtd. 26.08.2008 passed by the

C.C.E., Delhi-IV]

Haryana Textile Corporation Ltd. Appellant

Vs.

CCE, Delhi-IV  Respondent

Present for the Appellant : Shri.S.C.Kamra, Advocate

Present for the Respondent: Shri.R.K.Grover, DR

Coram:HONBLE MR. RAKESH KUMAR, MEMBER (TECHNICAL)

HONBLE MR.S.K. MOHANTY, MEMBER (JUDICIAL)

Date of Hearing/Decision: 08/04/2015

FINAL ORDER NO. 51182/2015

PER: RAKESH KUMAR

The appellant are manufacturers of cotton and manmade fabrics. They are independent textile processors. The period of dispute in this case is from 16th December, 1998 to 28th February 2001. During this period they were processing the fabrics with the aid of one Hot Air Stenter and had opted for the payment of duty under Compound Levy Scheme of section 3 A of Central Excise Act 1944 read with Rule 96 ZQ of the Central Excise Rules, 1944. Initially the Commissioner determined their monthly duty liability on the basis of their provisional Annual Capacity of production as Rs.7.5 Lakhs per month per stenter and since there was only one stenter, their provisional duty liability was fixed as Rs.7.5 Lakhs per month. However, the Commissioner vide Final Order dated 26/04/1999 determined their monthly duty liability as Rs.8,04,096/- per month by including the length on the galleries also. Against this order dated 26.04.1999 of the Commissioner the appellant filed an appeal to the Tribunal and the Tribunal vide final order dated 22.06.2000 remanded the matter to the Commissioner for de-novo adjudication after hearing the appellant. In the course of de-novo proceedings, the appellant made a request for re-determining their duty liability under section 3A (4) on the basis of their actual production. However, the Commissioner by the impugned order dated 26.08.2008 while holding that their duty liability per month per chamber during the period of dispute would be Rs.1,50,000/-, rejected their request for determination of their duty liability based on actual production in terms of sub-section (4) of section 3A. Against this order of the Commissioner, this appeal has been filed.

2. Heard both the sides.

3. Both the sides agree that the Commissioner in the impugned order has not considered the appellants request for re-determination of their duty liability under section 3A (4) on the basis of their actual production. The only reason given for this by the Commissioner in the impugned order is that the company is under BIFR and as such the re-determination of their duty liability on actual basis is not warranted at this stage. In our view the reason given by the Commissioner for determining assessees duty liability under section 3A (4) is not correct, as when the appellant had made a request for re-determining their duty liability for the period of dispute on the basis of actual production and there is such a provision in sub-section (4) of Section 3A, the Commissioner should have considered their request for the same. In view of this, the matter is remanded to the Commissioner for re-determining the appellants duty liability on the basis of actual production in terms of sub-section (4) to section 3A of the Central Excise Act. The Commissioner shall consider the evidence and data provided by the appellant. The appeal stands disposed of as above.

[Dictated & Pronounced in the open Court].

(S.K.MOHANTY) (RAKESH KUMAR)

MEMBER (JUDICIAL) MEMBER (TECHNICAL)

Anita

??

??

??

??

0

2