TMI Blog2002 (2) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... ual Capacity Determination Rules, 1997 issued under Section 3A(2) of the Central Excise Act. The appellants declared parameters of their mills. The ld. Commissioner first determined the annual capacity of the furnaces provisionally and subsequently after verification of data, the final capacity of the furnaces was determined. SCNs were issued to the appellants asking them to explain as to why the Annual Capacity of the Induction Furnace should not be re-determined, and why Central Excise Duty on the re-determined capacity should not be collected and why penalty should not be imposed. Ld. commissioner re-determined the capacity of the furnaces. Being aggrieved by this re-determination of the capacity of the induction furnaces operated by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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 not open to the Commissioner to review his own Order retrospectively . Ld. Counsel also referred to the judgment of the Larger Bench o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ature may, in certain cases, overrule or nullify the judicial or executive decision by enacting an appropriate legislation. However, without enacting an appropriate legislation, the Executive or the Legislature cannot set at naught a judicial order. The Executive cannot sit in an appeal or review or revise a judicial order. The Appellate Tribunal consists of experts and decides matter quasi judicially. A Secretary and/or Minister cannot sit in appeal or revision over those decisions. At the highest, the Government may appeal to the Tribunal itself for a review, if circumstances so warrant. But the Government would be bound by the ultimate decision of the Tribunal . 5. Ld. Counsel submits that the Commissioner in the instant cases had revi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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