2007 (1) TMI 459 - AT - Central Excise

Summary

Issues:
1. Determination of Annual Capacity of Production including gallery length.
2. Duty liability on gallery component.
3. Appeal against the order of fixation of Annual Capacity.
4. Benefit of exclusion of gallery length.

Analysis:
1. The case involved the determination of the Annual Capacity of Production (ACP) by including the length of galleries attached to the stenter by the appellants. The Commissioner determined the ACP in a previous order, which led to a show cause notice being issued to the appellants for not paying duty on the gallery component. The Assistant Commissioner adjudicated the show cause notice, dropping the demand based on the Supreme Court's decision in the case of Sangam Processors Bhilwara Ltd. v. CCE [2002 (146) E.L.T. 254 (S.C.)].

2. The Revenue, being aggrieved by the Assistant Commissioner's order, filed an appeal before the Commissioner (Appeals). The Commissioner (Appeals) held that since the assessee had not challenged the order of fixation of ACP, they could not claim the benefit of exclusion of gallery length. Consequently, the duty liability was confirmed by setting aside the earlier order, leading to the present appeal before the Tribunal.

3. The attention of the Tribunal was drawn to a decision of the Hon'ble Mumbai High Court in the case of Om Textile Pvt. Ltd., which stated that the non-filing of an appeal against the order of fixation of ACP should not result in the denial of substantive benefit as declared by the Supreme Court. Relying on this decision, the Tribunal held that the objection raised by the Commissioner (Appeals) regarding the non-filing of an appeal against the ACP fixation order could not affect the assessee's case. Therefore, the Tribunal set aside the impugned order and remanded the matter back to the Commissioner (Appeals) for a decision on merits, ultimately allowing the appeal in favor of the appellants.