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TMI Blog2012 (12) TMI 387X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise Tariff. 1.2 The 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 R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 7-9-2006 allowed the appeal on the ground that Section 3A of the Central Excise Act, which is the parent provision for Rule 96ZO of Central Excise which has been omitted by Section 21 of the Finance Act, 2001 without saving clause and hence pending proceedings cannot continue. 1.4 Revenue filed an appeal against the Tribunal's order before the Hon'ble Punjab & Haryana High Court and Hon'ble High Court vide order dated 3-2-2010 set aside the Tribunal's order dated 7-9-2006 and directed the Tribunal to decide the matter on merits. 1.5 The Hon'ble High Court also directed the appellant to appear before the Tribunal on 8-4-2010. In pursuance to the direction of the Hon'ble High Court, the matter was listed before the Tribunal on 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 thereafter, the Tribunal's order before Hon'ble Punjab & Haryana High Court and at present the matter is pending before the Hon'ble Supreme Court in SLP No. 22134/2008 [2009 (233) E.L.T. A94 (S.C.)]. Hon'ble High Court in this matter, on 27-7-2011, passed the following order :- "Dismissed as withdrawn without prejudice to the Tribunal being a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged before the Tribunal was upheld by the Tribunal vide order dated 3-5-2002 [2002 (150) E.L.T. 567 (Tri.-Del.)], that Appellant's appealed against Tribunal's order dated 3-5-2002 was dismissed by Hon'ble Punjab & High Court on 20-5-2008; that against that order of the Hon'ble High Court, the Appellant filed SLP No. 22134/2008 before the Hon'ble Supreme Court in respect of which a notice has been ordered to be issued on 15-9-2008, that the matter of annual capacity determination is still pending before the Apex Court, that in view of this, the very basis of dismissal 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of hearing Sh. Saurav Yadav, Advocate had appeared for the Appellant, he had sought adjournment on the ground that this matter was being handled by Sh. Hemant Bajaj, Advocate, in the office of Sh. K.K. Anand, and he has left the office of Sh. K.K. Anand, but his request for adjournment was not accepted and the matter was decided after hearing mainly the Departmental Representative there it cannot be said that the Appellant had been given effective opportunity to argue their case. 6. In the Final Order dated 17-8-2010, one of the main ground for dismissal of appeal on merits is that the order dated 14-10-1997 of the Commissioner determining the Appellant's Annual Capacity of production and on that basis there annual monthly duty liabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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