ORDER
Jyoti Balasundaram, Member (J)
1. For reasons recorded below, we dispense with the requirement of pre-deposit of duty payable in terms of the annual capacity as determined by the impugned order and stay its recovery and proceed to hear the appeal itself with the consent of both the sides.
2. In this case, the ACP of the furnace of the appellants has been determined by the Commissioner of Central Excise, Allahabad as 10.2 MT for the year 1-9-1997 and 6 MT from 10-9-1997 onwards. The appellants submit that the Commissioner ought to have determined the ACP on the basis of their actual production and the fact that they had opted for determination in terms of Rule 96ZO(3) does not take away their right to claim that the determination should be on the basis of production. They further pointed out that when the matter had come up earlier under ACP order dated 20-3-1998, the Tribunal vide its Final Order No. A-291-294/98-NB, dated 26-5-1998 (including the present appellants as well as others) had remanded the matter for taking the actual production of the appellants into consideration and for providing them an opportunity of being heard before passing fresh orders. However, in spite of this direction in the remand order, the Commissioner in the present order has held that the appellant is not entitled to benefit of determination on the basis of actual production as per Section 3A(4) of the Central Excise Act since they have opted for duty liability in terms of Rule 96ZO(3). He further submits that the copy of the verification report of the Department was not made available to the appellants and he prays that the matter may be remanded once again for determination of annual capacity on the basis of actual production, after furnishing a copy of the verification report to the appellants.
3. The learned DR while reiterating the findings contained in the impugned order, submits that even if the Tribunal were to hold that the ACP is to be determined on the basis of actual production, still the appellants will be required to furnish certain particulars as prescribed under Section 3A(3) of the Act and Rule 96ZO(1) and (2) of the Rules and it is only after this information as required under the Act and the Rules is supplied to the Department that ACP can be determined on the basis of actual production.
4. We have perused the remand order of the Tribunal and agree with the appellants that the Tribunal had directed determination of ACP on actual production basis. We therefore, hold that the impugned order determining the ACP in terms of Rule 96ZO(3) is contrary to the terms of the remand order and accordingly set aside the same. The ACP of the appellants furnace is directed to be determined on the basis of actual production. The appellants shall furnish the particulars as required in terms of the Section and the Rules and fresh orders shall be passed after verification on the basis of the documents to be filed by the appellants and after extending a reasonable opportunity to the appellants of being heard in person. The Commissioner shall also furnish a copy of the verification report to the appellants before hearing them in their defence. The appeal is thus allowed by way of remand.
