ORDER
S.L. Peeran, Member (J)
1. This Stay application and the appeal arise out of the order-in-original No.1/2000 dt.6.10.2000 passed by the Commissioner of Central Excise, Hyderabad. The issue involved in this appeal is determining the demands in terms of the Rule 3 (4) of the Hot Rolling Steel Mills Annual Capacity Determination Rules 1997 read with Notification No.38/97/CE(NT) DT.1.8.97 The commissioner has fixed the Annual Capacity of the Production of the Hot Rolling Mills at 8200.5. M.Ts. with effect from 1.9.95. He has also finally fixed the duty liability at Rs.2,05,013/- with effect from 1.9.97. The matter had come up for consideration of the Stay Application, and the Tribunal, by stay order No.1086/2001 dt.13.2.2000, observed that the assessee can challenge the quantification after the same is done by the Department by filing a separate application. Now the above application has been filed by the party on the ground that they have received a letter. OC.No.432/2000 dt.11.10.2000 from the Superintendent of Central Excise, Charminar I Range, Hyderabad confirming the differential duty amount for the period from 1.9.97 to 31.3.2000 to Rs.5.19,250/- Ld. Consultant submits that they had filed declaration on September, 97 and the same had been accepted by the Superintendent and they were informed of it. An order was passed by the Ld. Commissioner accepting the declaration. However, two lines had been added by him as follows:-
“Approved the declaration provisionally pending verification of the declaration furnished by the manufacturer.”
He submits thereafter a team of experts from Chandigarh was called to re-determine the parameters. The said team confirmed the earlier parameters. After lapse of time, the Commissioner again called for the same team from Chandigarh and they have filed another report changing the production capacity. The Ld. Consultant submits that there was no change in the parameters and hence refixation of production capacity is not maintainable. Hence there cannot be a change in the determination of annual production capacity. He submits that the Tribunal has already taken a view in the case of Ranjeev Alloys Ltd. vs. CCE, Meerut reported in 1998 (102) ELT 346 (T) that there cannot be any provisional assessment under Sub Section 4 of Section 3 A of the said regulations. The same has been followed by this Bench in the case of Saravana Alloy Steels P Ltd. vs. CCE, Bangalore as reported in 1998 (102) ELT 668. The Tribunal, after taking into consideration of the both judgements, remanded the matter for de novo consideration on the ground that the Commissioner had not taken these pleas into consideration. He submits that this matter may also be remanded for de novo consideration with the same direction.
2. Arguing for the Revenue the Ld. DR submits that there is no ground for remanding the matter. The Appellants’ annual capacity was determined initially on provisional basis and therefore subsequent calling for experts from Chandigarh for re-assessment of the production is justified.
3. We have heard both the sides in the matter. After a careful consideration of submissions, we notice that the Tribunal in both the noted judgements have categorically stated that the under section 3 A (4)of the CEA Act determination of the Annual Production is a final order and is appealable one. Such orders cannot be considered as provisional orders and determination cannot be on provisional basis. The Ld. Commissioner has not taken into consideration both the judgements, which has been cited. Therefore, the earlier orders remanding the cases for de novo consideration stands good for this case also. While granting waiver of pre deposit, we take up the appeal and remand the case to the original authority to reconsider the matter in the light of the judgements cited above, after affording a reasonable opportunity of hearing to the appellants and then pass a speaking order.
(order dictated and pronounced in the open court)