TMI Blog2016 (2) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... law that, an order, which is appealable is not appealed against, it attains finality and binds a person against whom said order is issued. In the absence of any challenge and appeal to final determination of the production capacity, we find the efforts of the appellant to contest the findings in the impugned order are incorrect and cannot carry their case any further. Thirdly, we find that the omission of section 3A from the Central Excise Tariff Act from 1.3.2001, may not have much consequence on the case in hand, in as much that production capacity was finally determined in March 2000, which remained in challenge, the appellant should have discharged the duty liability based upon such annual capacity of production as determined by the learned Commissioner. In the absence of such discharge of duty liability the lower authorities were left with no choice but to issue show cause notices for recovery of the duty liability for the period in question. It can be said that these show cause notices in fasten of any new liability of the appellant to get attracted under the mischief of proceeding imitated after the omission of the provisions of section 3A from the Central Excise Act 194 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst appellate authority also met with the same face. 3. Learned Counsel would submit that the demands are improperly confirmed as the appellant had filed a declaration on 06-08-1997 for fixation of determination of the production capacity as per rule 96ZO(3) of Induction Furnace Annual Capacity Determination rules, 1997 (herein after referred to as rules); the learned Commissioner of Central Excise, Goa, while letter dated 26-09-1997 determined the capacity provisionally. It is his submission that on 6-4-1998, the appellant requested for determination of annual capacity of production as the same was done without consideration for the fact that the power supply to the appellant was limited not, having received any response, appellant preferred writ petition before the Hon ble High Court of Bombay in Panaji. Honble High Court disposed of the writ petition by directing the adjudicating authority to reconsider the annual capacity of the production keeping in mind position the supply of electricity. It is his submission that on 29-05-1998, Learned Commissioner informed the appellant that he does not have power to re-determine the annual capacity of production; which was challenged i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13-03-2000 which determines the annual capacity of production of the appellant was a challengeable order and is unchallenged. 5. We have considered the submissions made at length by both sides and perused the records. 6. The issue involved in this case is whether the appellant is liable to discharge the duty liability from August, 1997 to March, 2000 based upon the annual capacity of production determined by the lower authorities and whether the demand raised by the show caused notice consequent to the determination of production capacity are correct or otherwise. 7. We find from the records that the Commissioner of Customs and Central Excise Goa has in determined the annual capacity of production of the appellant provisionally by a letter dated 26.09.1997, which was followed by a letter dated 25/09/1998. Appellant contested the letter dated 25/09/1998, before the tribunal in an appeal. The said appeal was rejected as also an application for rectification of mistake on the ground that the latter dated 29-05-1998 did not finally determine the annual capacity of production, there is no case for the grievance so as to challenge to said letter. We find that the entire case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner if they desire to propose any changes in plants and machinery installed, which changes or may lead to change in the annual capacity of production as envisaged in Rule 4 of the Induction Furnace Annual Capacity Determination Rules. 1997. 4. Your are further informed that this order is issued without prejudice to any other action or proceedings which have been initiated or may be initiated against you or any other person under the provisions of Central Excise Act, 1944 or Central Excise Rules 1944 or any other laws for the time being in force in India. Yours faithfully, S.D. (SARVJEET S. RANA) Dated. 23.3.2000 COMMISSIONER OF CUSTOMES CENTRAL EXCISE, GOA Enclosures. Copy of the Verification Report dated 25.1.2000 Copy to- 1. DC (Div. Panaji) 2. Supdt. Central Excise, Quepem Range 3. Office Copy. It can be seen from the above reproduced letter that Commissioner of Central Excise, Goa had finally determined the annual capacity of production. It is also to be noted that this letter is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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