TMI Blog2015 (7) TMI 1147X X X X Extracts X X X X X X X X Extracts X X X X ..... ded in favor of the assessee. - C.M.A. Nos. 1698-1699 of 2009 - - - Dated:- 3-7-2015 - R. Sudhakar and K.B.K. Vasuki , JJ. Shri K. Jayachandran, for the Appellant. Shri E. Vijay Anand, for the Respondent. JUDGMENT [Judgment per : R. Sudhakar, J. (Common)]. - Aggrieved by the orders of the Tribunal in dismissing the appeal and the subsequent miscellaneous application filed by it, the assessee is before this Court by filing the present appeals. This Court, vide order dated 7-7-2009, while admitting the appeals, framed the following substantial questions of law for consideration :- (1) Whether the plea of the mistake pointed out in ROM application, raised in the grounds of appeal and agitated before the authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the ACP of the appellant unit has been provisionally fixed at 14187.978 MT and the Department was directed to verify the declaration filed by the appellant with the help of Technical Experts/Chartered Engineers and submit detailed report. However, no report has been submitted and the same is not disputed. On 2-3-2000, the appellant requested the Department to refix the ACP stating that the declaration already filed by the assessee contains two errors/mistakes, viz., mentioning of wrong type of furnace and mistake in the formula. The plea of the appellant is that the type of furnace is only batch type furnace, for which the factor W is 1.2 Kg./Mtr. as against 2.47 Kg./Mtr. as stated earlier. This request of the appellant was acknowledge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies the same, the liability will be reduced considerably. These aspects have not been considered by the adjudicating authority and the Appellate Authority. Not even a word was mentioned about this plea in the order. Thus, the order is one without properly considering the relevant issues. 6. However, the Tribunal decided the issue primarily on the question that ACP was fixed finally and not provisionally, as contended by the assessee/appellant and held against the assessee. 7. Since the Tribunal did not consider the issue of the effect of Notification No. 45/97-C.E. (N.T.), dated 30-8-97, which deals with the change in parameters, rectification application was filed, which was dismissed by the Tribunal holding that except the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h was considered by the Tribunal was whether the Annual Capacity of Production (ACP) of the assessee mill was fixed provisionally vide communication dated 3-4-1998 so as to accept the assessee s contention that the duty demand was not validly raised or the ACP was fixed finally by the above letter of April, 1998 so as to hold that the duty demand was not premature and was validly raised . The Tribunal, considering the submissions and perusing the communication dated 3-4-1998 went on to hold that the ACP was fixed provisionally with effect from 1-9-97 vide letter dated 12-9-97 and subsequently fixed finally by letter dated April, 1998. For better clarity, the relevant portion of the order is quoted hereinbelow :- 2. We have carefully co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, the Tribunal dismissed the same holding that, the only point argued before it relates to premature demand, stating that the ACP had only been fixed provisionally and that no plea was raised with regard to change in parameters. The relevant portion of the order is extracted hereinbelow for better clarity :- 2. We have carefully considered the rival submissions. The only point argued before the Bench during the hearing of the appeal, was that the demand was premature as the ACP had been fixed provisionally. No plea was raised before the Bench regarding the change in parameters. Therefore, no error let alone an error apparent arise from the record in the Tribunal s final order. The ROM application is accordingly dismissed. 13. H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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