SWARUP CASTINGS PVT. LTD. Vs. COMMISSIONER, CENTRAL EXCISE

JUDGEMENT

(1.) Heard both sides. Appellant filed this appeal against the adjudication order passed by the Commissioner of Central Excise whereby the annual capacity of production was determined under Section 3A of the Central Excise Act.

(2.) Contention of the appellant is that as against an earlier adjudication order the appellant filed appeal and the Tribunal remanded the matter to the adjudicating authority for redetermining the actual capacity after taking into consideration the annual production under Section 3A(4) of Central Excise Act. The contention is that even after a specific direction by the Tribunal in the remand proceedings the Commissioner again determined the annual capacity not on the basis of actual production. The contention is that Revenue's appeal filed against the Tribunal decision has been dismissed by the Supreme Court. Therefore, after the judgment of the Supreme Court the finding of the Tribunal are binding on the revenue, and as per the remand order the annual capacity should have been determined after taking into consideration the actual production under Section 3A(4) of Central Excise Act. The contention of the Revenue is that in the remand proceedings the Tribunal had not given any direction to determine the annual capacity on the basis of actual production under Section 3A(4) of the Act. In fact, the Tribunal simply remanded the matter for considering the claim of the appellant on the basis of actual production capacity. The contention of the Revenue is that this issue is now settled by the Hon'ble Supreme Court in Commissioner of Central Excise and Customs v. Venus Castings (P) Ltd., 2000 (117) ELT 273 (SC), whereby the Hon'ble Supreme Court held that where the manufacturer avails the procedure under Rule 96 ZO (3) of Central Excise Rules, the manufacturer cannot claim the benefit of determination of production capacity under Rule 3 A(4) of Central Excise Act during the same financial year.

(3.) Admitted facts of the case are that on 12.8.97 appellants filed declaration for determination of their annual capacity under Rule 96 ZO (3) of Central Excise Rules, 1944 and the annual capacity was determined in accordance with the above -mentioned rule. The contention of the appellant is that as in April 1998 they requested to re -determine their annual capacity on the basis of actual production therefore in view of the Tribunal's remand order they are entitled to pay duty in the year 1997 also on the basis of actual production. We find that the Tribunal in the remand order only remanded the matter to the adjudicating authority to examine the appellants claim for determination of ACP on actual production basis. The adjudicating authority rejecting their claim and decided the issue in accordance with the decision of the Hon'ble Supreme Court in the case of Venus Castings (P) Ltd., (Supra). We find no merit in the claim of the appellant that Tribunal specifically directed the adjudication authority to decide their claim on the basis of actual production. In these circumstances, we find no merit in the contention of the appellant. Therefore, the appeals are dismissed. Taking into consideration the facts and circumstances of the case the penalty is set aside.