TMI Blog2001 (5) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... lls Annual Capacity Determination Rules, 1997 and for the purposes of determination of annual capacity of production in the appellants rolling mill, the joint verification was conducted by the appellants representative and the Central Excise Officers. In the Joint Verification Report dated 14-11-1994, apart from recording various parameters and particulars of the mill, total actual production during the previous year i.e. 1996-97 was also recorded. Based upon that report and based upon the manner as envisaged in Rule 3 of the said Rules, the Commissioner of Central Excise, Jamshedpur vide his order dated 19-2-1998 fixed the annual capacity of production as 3044.531 MTs. The appellants discharged their duty liability during the relevant pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed by the Commissioner. Subsequent issuance of show cause notice after a gap of one year by the Commissioner for revision of the annual capacity of production in accordance with the Rule 5 amounts to review of his own Order, which is not permissible under the law. He, further, submits that in any case, the show cause notice having been issued after the normal period of limitation is time-barred in terms of the provisions of Section 11A. In support of his above submission, he refers to the Tribunal s decision in the case of Jayraj Ispat Ltd. v. Commissioner of Central Excise, Hyderabad reported in 2000 (115) E.L.T. 346 (Tribunal) wherein it has been held that there is no provision under the said Rules or Act empowering the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided for determination of annual capacity of production, lays down the manner for doing the same. As such, these are the Rules which have to be followed by the Commissioner while fixing the annual capacity of a mill. In the present case, the Commissioner has fixed the annual capacity in terms of Rule 3 of the said Rules whereas the Revenue s case is that it is Rule 5 which had to be applied. The appellants have strongly contended that the Commissioner cannot review his Order as regards the fixation of annual capacity of production for which they rely upon the Tribunal s decision in the case of Jayraj Ispat Ltd. referred supra. By applying the said decision, we find that in the absence of any suppression on the part of the assessee, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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