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2016 (2) TMI 286 - CESTAT MUMBAI

2016 (2) TMI 286 - CESTAT MUMBAI - 2016 (343) E.L.T. 346 (Tri. - Mumbai) - Discharge of duty liability from August, 1997 to March, 2000 based upon the annual capacity of production - whether the demand raised by the show caused notice consequent to the determination of production capacity are correct or otherwise? - Held that:- It can be seen from the reproduced letter that Commissioner of Central Excise, Goa had finally determined the annual capacity of production. It is also to be noted that t .....

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has not challenged this order dated 13.03.2000 which fixed the annual capacity of production of the appellant. It is settled 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. - .....

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t 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 1944. - Fourthly, as argued by the appellant that the show cause notice invokes the determination as done by the learned Commissioner by a letter and does not invoke the le .....

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to the annual production capacity finally determined, the duty liability along with interest arises as also the penal provisions which are invoked in this case. - Decided against assessee - APPEAL No. E/1256/06-Mum - Final Order No. A/4001/2015-WZB/EB - Dated:- 31-12-2015 - MR. M.V. RAVINDRAN, MEMBER (JUDICIAL) AND MR. C.J. MATHEW, MEMBER (TECHNICAL) For the Petitioner : Shri V.M. Doiphode, Advocate For the Respondent : Shri Ashutosh Nath, Assistant Commissioner (AR) ORDER PER: M.V. RAVINDRAN T .....

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ommissioner of Customs and Central Excise Goa, while letter dated 26.09.1997 fixed the production capacity on provisional basis. The appellant subsequently, wanted to change to fixation of capacity of production by applying provisions of rule 96ZO (3) by seeking to change parameters. Lower authorities did not agree as the appellant had sought the capacity fixation based upon the furnace capacity, there was no alternative to change production capacity, unless there is some facility changes in fur .....

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mination 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 B .....

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n for rectification of mistake. It is his submission that there is no final determination of annual capacity of production by the Learned Commissioner hence confirmation of the demands is premature. It is his submission that Learned Commissioner has not followed the direction of the Hon ble High Court of Bombay in arriving at the annual capacity of production of the appellant. It is his submission that this tribunal in case of Sunrise Electromelt Ltd. in final order no. A/256/2007/10-04-2007 and .....

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, as the law which has been settled by the Hon ble High Court of Gujarat in the case of Krishna Processors-2012 (280) E.L.T. 186 (Guj.). It is his further submission that the same view has been expressed by the tribunal in the case of Alwar processors Pvt. Ltd. 2014 (308) E.L.T. 720 (Tri-Del.). He would submit that the demands to be set aside and matter be remanded back to re-determine annual capacity production and then take up the matter for adjudication. 4. Learned departmental representative .....

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ppellant, even if there is no show cause notice. It is his submission that the Apex Court in case of Flock (India) Pvt. Ltd. 2000 (120) E.L.T. 285 (SC) has clearly laid down that non challenging of appealable order is definitely adverse to the case. It is his submission that the letter dated 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 th .....

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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 the appellant is .....

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unacceptable for more than one reason. Firstly, we find that the office of commissioner of Central Excise, Goa, vide letter dated 13.03.2000 informed the appellant as under. OFFICE OF THE COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE : GOA F. NO. V/30/1(K)/97-CX-I Dated-13-03-2000 To. M/s Shri Balaji Rollings (P) Ltd. M-14/15,Cuncolim Industrial Estate. Cuncolim, Goa. Gentlemen, Sub: Determination of Annual Capacity of production of M/s Shri Balaji Rollings (P) Ltd, Cuncolun, Goa under Section 3A( .....

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as under: (i) Number of Furnace 01 (ii) Total Capacity of Furnace (s) 3MT Based on Bill no. 017/25.4.97 and Bill no. 81.96-97 dated 18.3.97 of M/s Muzaffarnagar Steel & M/s Mahadev Steels. New Delhi) (iii) The Annual Capacity of Production 3x3200MT=9600MT (iv) Option exercised for payment of Central Excise duty:- 1997-98 96ZO(3) 1998-99 96ZO(3) 1999-2000 96ZO(3) 3. M/s Shri Balaji Rollings (P) Ltd. Cuncolim, Goa is directed to obtain written approval of Commissioner if they desire to propose .....

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e 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 dated 13.03.2000, issued .....

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00 which fixed the annual capacity of production of the appellant. It is settled 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 .....

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