TMI Blog2017 (1) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Annual Capacity of Production has not been challenged and therefore the refund should be rejected - Appeal allowed. - Appeal No. E/3404/05 - A/88642/16/EB - Dated:- 20-7-2016 - Mr. M.V. Ravindran, Member (Judicial) And Mr. Raju, Member (Technical) Shri R.B. Pardeshi, Advocate, for appellant Shri H.M. Dixit, Asst. Commr (AR), for respondent Per: Raju The appellant Just Textils Ltd. are processors of cotton fabrics and were covered by the provisions of Section 3A of the Central Excise Act, 1944. 2. The appellant was paying duty on compounded levy basis and their annual capacity of production was determined under Annual Capacity Determination Rule, 1988 by including the length of galleries. Demand show-cause notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said decision it has been held that the Order of Commissioner determining Annual Production Capacity is an administrative order and not an appellable order. In view of the above he argued the question of filing appeal against the said order does not arise. He argued that it was open to the Assistant Commissioner to adjudicate on the issue of includability of the galleries in the capacity. He argued that the Revenue has not challenged the correctness of the order of the Asst. Commissioner on merits otherwise. 4. Learned A.R. argued that the order of the Commissioner fixing Annual Capacity of Production is an appellable order. He argued that once the said order issued by the Commissioner has not challenged by the appellant, it is not o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction Capacity. Significantly, sub-rule (3) of Rule 4 which provides for communication of such determination, provides that after determining the annual capacity of production and the average value of processed textile fabrics, the prescribed authority shall intimate the same by an order as also the rate of duty applicable to the independent processor. The Rules, therefore, do not refer to such determination as an order to be passed by the prescribed authority, but envisages communication of such determination through an order to the independent processor along with the rate of duty applicable to him. 16. From the tenor of the Rules, the provisions made thereunder and the nature of exercise envisaged for determination of Annual Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in determining Annual Production Capacity and collecting corresponding excise duty on such capacity. In our view, the excise authorities as well as the Tribunal erred in rejecting such claims merely on the ground that the determination of Annual Production Capacity was not challenged. The decisions of the Apex Court in case of Mafatlal Industries (supra) as well as Collector v. Flock (India) Pvt. Ltd. (supra) would not apply. In case of Mafatlal Industries, the Apex Court ruled that an assessee cannot claim refund that too after the indefinite period of time on the strength of decision in case of another assessee. In Collector v. Flock (India) Pvt. Ltd. (supra) , it was a case where classification of a product was the controversy. The As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct order left the issue open for consideration afresh. The factual matrix reveal that the provisional order dated 17 th December, 1998 was passed by the Commissioner of Central Excise, Mumbai-6 to facilitate the processor to discharge his liability under the new Scheme till such time the verification and final determination of annual capacity of production is made. In the said order, it was made clear that in the event determination of duty liability is held to be on the higher side, or the appellant is found to be ineligible under the scheme, then it shall have to pay differential duty involved. 18. After the aforesaid provisional order, the identical issue went to the Apex Court in the case of Kamakshi Finance Corporation v. Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing two grounds : (a) That the Higher Judicial Forum did not set aside the capacity of the unit already determined under order dated 1 st July, 1999 and; (b) that the refund was not filed under protest as prescribed under Section 233(b) by the respondents. Against the above order, this appeal was admitted to consider the questions extracted in the opening part of this judgment. 19. As already indicated hereinabove, the Apex Court, in the group of matters, the Commissioner of Central Excise v. S.P.B.L. Ltd. - 2002 (146) E.L.T . 254. held that the length of galleries having no fan or radiator attached to it shall not be taken into consideration while counting number of chambers in each of hot air stenter. Obviously, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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