ORDER
K.K. Usha, J. (President)
1. The assessee has come up against the order passed by the Commissioner dated 23.12.2003 to the extent he has imposed penalty and demanded interest. We find the view taken by the Commissioner quite strange.
2. The Commissioner had initially determined the annual production capacity of the appellant’s unit by order dated 29.9.97 at 9600 MT. The above order was successfully challenged by the assessee before this Tribunal. By order dated 9.9.99 case was sent back to the Commissioner for re-determination. On second time the Commissioner re-determined the capacity at 9600 PMT under order dated 21.1.2000. This order was also set aside by this Tribunal under final order dated 5.9.2000 directing the Commissioner to re-examine the capacity. Therefore, the Commissioner passed order dated 7.2.2002. It was also set aside by this Tribunal under order dated 4.9.2002. The case was. again sent back and therefore, the Commissioner passed the impugned order dated 5.1.2004.
3. The Commissioner determined the annual capacity as claimed by the assessee. He also found duty liability on the basis of the annual capacity determined had been already paid by the assessee at the time of clearance of goods and therefore, there is no question of any differential duty. After holding as above the Commissioner proceeds to find as follows:
“I, however, find that in terms of Rule 96ZO(1)(I)(b) of Central Excise Rules, 1944, as it existed at the relevant time, the assessee was required to pay an amount of Rs. 27,79,635 (as calculated below) by 31.3.98:
(i)
Annual capacity determined by the Commissioner vide order dated
29.9.97
9600.000 MT
(ii)
Duty liabilty @ Rs. 750 PMT in terms of Rule 96ZO(l)(I)(a) for
the period from September 97 to March 98 (7 months).
9600 x7x750/12 = Rs. 42,00,000
(iii)
Duty paid during September 97 to March 98 on the ingots
manufactured during this period & also cleared during this period.
Rs. 14,20,365
(iv)
Differential duty in terms of Rules 96ZO(l)(I)(b)
(ii)-(iii) = Rs. 27,97,635.
I find that the duty amounting to Rs. 11,22,650 as arrived at above was required to be paid by the assessee latest by 30.4.98, however, they have failed to do so. They are, therefore, liable to penalty of Rs. 11,22,650 in terms of proviso to Rule 96ZO(1)(I) of Central Excise Rules, 1944, I also find that the assessee for the first time vide their written submission dated 8.5.2001 submitted at the time of personal hearing have claimed that their annual capacity production may be re-determined in terms of Sub-section (4) of Section 3A. They are, therefore, liable to pay interest @ 18% per annum under provisions of Rule 96ZO of Central Excise Rules, 1944 on the amount of duty not deposited by due date for the period from the due date of payment to 7.5.2001″.
4. We have heard the learned Counsel for the appellant as well as the learned
SDR.
5. In a case where the annual capacity determined by the Commissioner was set aside by this Tribunal three times, we are unable to understand how the Commissioner can impose penalty and direct payment of interest by the assessee on the basis of the initial fixation which was held to be unsustainable by this Tribunal. The facts of the case would clearly show that there was no bona fides on the part of the Commissioner and he is bent upon harassing the assessee. We find no other explanation for the strange action on the part of the Commissioner in this impugned order.
6. We set aside the order impugned and allow the appeal. We direct the Registry to send a copy of this order to the Chairman, CBEC.