TMI Blog2012 (12) TMI 387X X X X Extracts X X X X X X X X Extracts X X X X ..... he period of dispute in this case is from 1-9-1997 to 31-3-2000. During this period, ingots were chargeable to duty under Compounded Levy Scheme notified under Section 3A of the Central Excise Act, 1944 read with Notification No. 30/97-C.E. (N.T.) and Rule 96ZO of the Central Excise Rules, 1944. The appellant had filed a declaration under the Induction Furnace Annual Capacity Determination Rules, 1997. (hereinafter referred to as IFCA Rules) for determination of their Annual Production Capacity. On the basis of their declaration, the jurisdictional Commissioner of Central Excise vide order dated 14-10-1997 determined their annual capacity on the basis of which their annual duty liability was worked out to Rs. 63,99,976/- and monthly duty liability came to Rs. 5,33,333/- which the appellant were required to discharge in two equal fortnightly instalments i.e. first instalment by 15th day of each month and second instalment by last date of each month. The appellant also filed a declaration under Rule 96ZO(4) of Central Excise Rules, which was required to be filed for availing scheme of Rule 96ZO (3). However, during August, 1998 and from August, 1993 to March, 2000, the appellant pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... based on the undisturbed binding order cannot be held to be maintainable; (b) the writ petition filed by the appellant against the Commissioner s refusal to re-determine their annual capacity of production and duty liability was dismissed by the Hon ble High Court vide order dated 20-5-2008 [2008 (231) E.L.T. 420 (P H); (c) the records nowhere disclose any specific request having been made by the appellant to opt out of the scheme on or after 31-3-1998. 1.6 Against the Tribunal Order No. 812/2010-EX, dated 17-8-2010, the Appellant filed a Reference Appeal No. 64/2011 before Hon ble Punjab Haryana High Court under Section 35G of the Central Excise Act, 1944 on the ground that the appeal was wrongly dismissed by the Tribunal on the ground that the Commissioner s order determining the Appellant s annual production capacity and monthly duty liability on the basis of which the duty demand has been calculated was not challenged, as this finding of the Tribunal is factually incorrect in view of the fact that the Commissioner s order dated 5-12-2000 determining annual production capacity and monthly duty liability on that basis had been challenged before the Tribunal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smissal of Appeal No. 1675/2004-EX against the order of duty demand based incorrect capacity determination is factually incorrect; that as is clear from the perusal of the order dated 17-8-2010, the same is an ex parte order, as though Sh. Saurabh Yadav, Advocate from the office of Sh. K.K. Anand, Advocate, had appeared for the appellant, he had requested for adjournment on the ground that earlier Sh. Hemant Bajaj, Advocate, had handled this matter but he has left the office of Sh. K.K. Anand and others have no vakalatnama to argue the matter, that in these circumstances, it was incorrect on the part of the Tribunal to go ahead with the hearing of the matter; that as held by the Apex Court in the case of J.K. Synthetics Ltd. v. CCE, reported in 1996 (86) E.L.T. 472 (S.C.), in case of ex parte dismissal of appeal on merits, the same is restorable when there was sufficient cause for absence of a party, and that in view of this, the Order No. 812/2010-EX, dated 17-8-2010 dismissing the Appeal No. 1675/2004-EX may be recalled and the appeal may be restored. 4. Sh. R.K. Verma, the learned Departmental Representative opposed the Appellant s plea for recall of the Final Order No. 812/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court nowhere dealt with the order of the Commissioner dated 14-10-1997. Being so, it cannot be said that the order dated 14-10-1997 passed by the Commissioner fixing the annual capacity of furnace installed in the factory of the appellants was ever disturbed by any higher authority. Undoubtedly, the demand which is made by the impugned order is in consonance with the annual capacity determined under the said order. 12. Once the records disclose that the order on the basis of which the duty liability is calculated was not challenged or was not interfered with in the manner known to law the present challenge to the order calculating and fixing the amount of duty based on such undisturbed binding order cannot be held to be maintainable. The impugned order is merely an order seeking execution of the basic order dated 14-10-1997. On this ground itself the appeal is liable to be dismissed. 7. On going through the records of this case, we find that in the matter of determination of annual capacity of production of the Appellant s factory, de novo adjudication dated 5-12-2000 had been passed by the Commissioner, the para 5.5 of which reads as under :- However, as the noticees had a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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