Oio No.7/99 Dt. 9.2.99 By Cce ... vs None

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH CHENNAI

S.No Appeal No. Appellant Respondent

Arising out of OIO/OIA No. and passed by Advocates appeared for appellants

1. E/772/2000 CCE & ST Chennai-III Sri Govinda Pathara Rolling Mills Pvt. Ltd. OIO No.7/99 dt. 9.2.99 by CCE Chennai-III None

2. E/195/2001 Chamundi Steel Castings (India) Ltd. CCE Chennai-III Order C.No.IV/16/79/97 CX. III Vol.II dt. 2.11.2000 by CCE Chennai-II A.Mudimannan

3. E/620/2001 Surana Metals & Steels (India) Ltd. CCE Chennai-II OIO No.10/CLS/2001-Tech. dt. 27.2.2001 by CCE Chennai-II S. Venkatachalam

4. E/225/2002 Sree Lakshmi Steels Rerolling Mill CCE Chennai-III OIA No.23/2002 (M-III) dt. 15.3.02 by CCE(A) Chennai Arun Kurian Joseph

5. E/628/2002 Surana Metals & Steels (India) Ltd. CCE Chennai-II OIO No.26/02 dt. 27.8.02 by CCE Chennai-II S. Venkatachalam

6. E/676/2003 Tamil Nadu Forgings Pvt. Ltd. CCE Chennai-IV OIO No.23/03 dt. 31.5.03 by CCE Chennai-IV S. Venkatachalam

7. E/929/2003 Sree Aravindh Steels Ltd. CCE Trichy OIA No.180/03 TRY (ADK) dt. 31.7.03 by CC & CCE (A) Trichy S.Murugappan, Ms.Sridevi

8. E/523/2004 Chamundi Steel Castings (India) Ltd. CCE & ST Chennai-III Order C.No.IV/16/79/97.CX.III dt. 9.1.04 by CCE Chennai III A.Mudimannan

9. E/597/2004 Sree Lakshmi Steel Rerolling Mill. CCE & ST Chennai-III OIO C.No.IV/16/184/98-CX.II dt. 4.12.98 by CCE Chennai-III Arun Kurian Joseph

10. E/255/2005 Sri Krishna Steels CCE Salem OIA No.9/2005-CE (SLM) dt. 271.05 by CCE (A) Salem A.Mudimannan

11. E/9/2006 Sri Vigneswara Steels (P) Ltd. CCE Salem OIO No.C.No.IV/16/108/98-C.EX.POL (CBE) dt. 7.10.05 by CCE Salem S.Muthuvenkatraman

12. E/81/2006 Vaibhav Mercantile Ltd. CCE Chennai-II OIA No.1/2006 (M-II) dt. 6.1.06 by CCE (A) Chennai A.Mudimannan

13. E/148/2006 Sri Rama Machinery Corporation Ltd. CCE Chennai-I OIO No.61/05 dt. 16.11.05 by CCE Chennai-I M. Karthikeyan

14. E/176/2006 Viki Industries Pvt. Ltd. CCE Chennai-II OIA No.65/05 (M-II) dt. 16.12.05 by CCE (A) Chennai A.Mudimannan

15. E/200/2006 CCE Chennai-II Viki Industries Ltd.

OIA No.65/05 (M-II) dt. 16.12.05 by CCE (A) Chennai A.Mudimannan

16. E/223/2006 Sri Rama Machinery Corporation Ltd. CCE Chennai-I OIO No.7/2006 dt. 14.2.06 by CCE Chennai-I M.Karthikeyan

17. E/287/2006 Viki Industries Ltd.

CCE Chennai-II OIO No.2 to 7/2006 dt.27.1.06 by CCE-II Chennai A.Mudimannan

18. E/291/2006 CCE Chennai-II Vaibhav Mercantile Ltd. OIA No.1/2006 (M-II) DT. 6.1.06 by CCE (A) Chennai A.Mudimannan

19. E/292/2006 CCE Chennai-II PMP Iron & Steel (I) Ltd. OIA No.6/06 (M-II) dt. 31.1.06 by CCE (A) Chennai Hari Radhakrishnan

20. E/326/2006 PMP Iron and Steel (I) Ltd. CCE Chennai-II OIA No.6/2006 (M-II) dt. 31.1.06 by CCE (A) Chennai Hari Radhakrishnan

21. E/486/2006 Sree Kaderi Ambal Steels Ltd. CCE Madurai OIO C.No.V/72/30/6/97-Tech. dt. 31.3.06 by CCE Madurai M. Kannan

22. E/620/2006 Bhuwalka Steel Industries Ltd. CCE Chennai-III OIO No.19/06 dt. 7.4.06 by CCE Chennai-III A.S.Monappa

23. E/364/2007 United Bleachers Ltd.

CC & CCE Salem Order No.2/2007 (Commr.) dt.26.2.07 by CC & CCE Salem None

Shri A.Mudimannan, S. Venkatachalam, Arun Kurian Joseph, S.Muthuvenkatraman, M.Karthikeyan, Hari Radhakrishnan, M. Kannan, A.S.Monappa Advocates appeared for appellant-assessee None appeared for S.No.1 & 23

Mr. M. Rammohan Rao, DC (AR) For the Respondent-Revenue

CORAM :

Honble Shri D.N. Panda, Judicial Member Honble Shri R. Periasami, Technical Member

Date of Hearing/Decision : 24.02.2015

FINAL ORDER No.40241-40263/2015

Per D.N. Panda

Although aforesaid appeals were in the mention list today, in view of the judgement of the Hon'ble Apex Court in CCE Chandigarh Vs Doaba Steel Rolling Mills  2011 (269) ELT 298 (SC) and Madras High Court in the case of Triveni Alloys Ltd. Vs CESTAT Chennai  2014 (306) ELT 617 (Mad.) holding that liability under Section 3A of the Central Excise Act, 1944 is determinable, both sides suggested that this batch of appeals may be disposed with appropriate direction to lower authority to re-determine the liability in accordance with law. Accordingly, these appeals are disposed by this common order.

2. Ld. Counsels suggested that wherever there was violation of natural justice, no proper determination of Annual Capacity Production (ACP) was made, abatement not allowed and procedure prescribed by Rule 5 of Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997 was not followed, such issues be relooked by concerned adjudicating authority, as a result of which both sides shall get reasonable opportunity to resolve their dispute at the gross root level. Added to this, ld. counsels appearing in different cases agreed that there shall be no challenge to leviability of duty under Section 3A of the Central Excise Act, 1944 in view of apex court Judgement and decision of Madras High Court. But they prayed that appellants deserve full length of hearing before the learned adjudicating authority to argue on different aspects in addition to proper determination of liability wherever such issues are involved. It is also stated in the Bar that Rule 5 of the Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997 being under challenge before the Hon'ble High Court of Madras in W.A. No.1620/2003 by M/s.Madras Steel Re-Rollers Vs UOI, the outcome of that judgment be also applied by learned adjudicating authority while they complete readjudication following principles of natural Justice the direction of the Tribunal made by this order.

3. Revenue agreed to aforesaid propositions.

4. In view of law laid down in aforesaid Judgements and agreement of both sides to reduce the dispute expeditiously before concerned adjudicating authority, all the appeals listed in Sl.No.17 to 39 of the cause list (Mention) are remanded to adjudicating authority concerned with the following directions :-

(i) Ld. authority shall grant fair opportunity of hearing to appellants to argue on the facts and evidence borne by record and no fresh evidence shall be entertained.

(ii) The authority shall also follow the ratio laid down in the following judgements and the appellant shall have proper opportunity of hearing on the basis of the ratio laid down in these cases :-

(a) Triveni Alloys Ltd. Vs CESTAT Chennai 2014 (206) ELT 617 (Mad.)

(b) CCE Chandigarh Vs DOABA Steel Rolling Mills 2011 (269) ELT 298 (SC)

(iii) Wherever abatement is permissible, that shall be allowed by the authority concerned in accordance with law.

(iv) Since appellants have grievance of violation of natural justice, the authority shall do justice to afford reasonable opportunity of hearing to prevent repetitive litigation.

(v) Wherever determination of ACP arises, the authority with due regard to Rule 3 of Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997 shall determine the same on the basis of materials on record and the appellants shall get proper opportunity of hearing to lead their defence in that regard.

(vi) Since it is mentioned in the Bar that Rule 5 of Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997 is under challenge before Hon'ble High Court of Madras in the writ application as aforesaid, the authority shall be guided by judgement of the Hon'ble High Court if Judgment therein comes while doing readjudication. Otherwise his decision shall be subject to outcome thereof. In such event, the authority shall mention in his order that the readjudication order is subject to outcome of the writ application above.

5. We hope that appellants shall cooperate with the authority concerned without seeking any adjournment when the matters are fixed by them. Learned authorities shall hear the matter afresh and record the evidence properly to pass reasoned and speaking orders expeditiously.

6. With the aforesaid direction and conclusion all the appeals listed in Sl.No.17 to 39 are remanded to the learned adjudicating authorities concerned.

7. Ld. A.R for the Revenue submits that the issue arising out of Rule 3 has already been decided by the apex court in CCE Chandigarh Vs Doaba Steel Rolling Mills  2011 (269) ELT 298 (SC) but constitutional validity of Rule 5 was not before the apex court. At this stage, Members of the Bar submit that Revenue has filed memo before the Hon'ble High Court of Madras stating that writ application may be transmitted to the apex court. We are unable to express any opinion on such proposition in absence of any such memo before us.

8. In view of the decision above, all the Revenue appeals are also remanded for reconsideration by the authority in the light of the above direction.

(Dictated and pronounced in open court)

(R. PERIASAMI) (D.N. PANDA) TECHNICAL MEMBER JUDICIAL MEMBER

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