ORDER
Jyoti Balasundram, Member (J)
1. The issue in this case relates to redetermination of Annual Capacity of Production of the Induction Furnace of the appellants’ firm.
2. The ACP of the appellant was determined as 9600 m.t. The assessee increased his production capacity and accordingly the ACP was redetermined as 20,800 m.t. They requested for redetermination of duty liability under Section 3A(4) & (5) of the Central Excise Act, on the basis of actual production. The Commissioner directed them to explain as to why the claim for redetermination should not be rejected. They filed appeal before the Tribunal which by its order dated 26-5-1998, remanded the matter to the Commissioner with the directions to hear the applicant and to determine capacity on basis of actual production on the basis of data to be furnished by the appellant. The present impugned order has been passed by holding that the assessee had exercised their option to pay duty under Rule 96ZO(3) and therefore, were, debarred from availing of the benefit of Section 3A(4) of the Central Excise Act and Commissioner has rejected the request of the assessee for fixation of capacity on the basis of actual production.
3. We have heard Shri J.S. Agarwal, ld. Advocate and Shri Satnam Singh, ld. SDR. We find that it has already been decided by the Tribunal in the case of Minakshi Castings Index Steels Pvt. Ltd. v. CCE, Kanpur reported in 1999 (32) R.L.T. 82 that Section 3A(4) is in conflict with Rule 96ZO(3) and whenever there is conflict in between section and the rule, the section prevails over the rule. The Tribunal has remanded cases for redetermination of duty liability on the basis of actual production in terms of Section 3A(4).
4. Ld. SDR points out that in spite of several opportunities extended to the appellants herein for substantiating this claim on the basis of actual production, the assessee did not avail of the opportunities and therefore, they have nc one to blame for this order rejecting their request for redetermination of duty liability. The Tribunal has directed the Commissioner to arrive at the duty liability on the basis of actual production; the Commissioner could not have refused to look into the actual production under Section 3A(4) on the ground contained in the impugned order namely that the assessee had already exercised its option in terms of Rule 96ZO(3). If the appellants did not furnish the data as required under the Act and Rules and as directed to be furnished by the Tribunal in its remand order, then the plea of the assessee that their duty liability would be different from what had been arrived at on the basis of actual would fail as unsubstantiated but this is not the ground for rejection of the plea of the assessee for redetermination of duty liability. Since the Tribunal has already held that even though the assessee has opted for payment of duty under Rule 96ZO(3), their ACP should be determined and duty liability should be redetermined on the basis of actual production, we set aside the impugned order, after dispensing with the requirement of pre-deposit and remand the matter for fresh decision by the Commissioner who shall redetermine the duty liability of the appellant herein on the basis of actual production in terms of Section 3A(4) of the Central Excise Act, 1944 after considering the evidence and material to be placed before him by the assessee and after extending a reasonable opportunity to the assessee of being heard in support of his case.
5. The appeal is thus allowed by way of remand.