TMI Blog2020 (2) TMI 1024X X X X Extracts X X X X X X X X Extracts X X X X ..... duty on the basis of actual production. The question framed as a substantial question of law arising from the impugned order passed by the CESTAT is not answered - appeal dismissed. - R/TAX APPEAL NO. 1369 of 2006 - - - Dated:- 13-2-2020 - MR.J.B. PARDIWALA AND MR. BHARGAV D. KARIA JJ. Appearance: Mr. Paresh M Dave (260) for the Appellant(s) No. 1 Mr. Mitesh R Amin (2876) for the Opponent(s) No. 1 ORAL ORDER (PER : MR. BHARGAV D. KARIA) 1. This appeal is preferred against the order passed by the Customs, Excise and Service Tax Appellate Tribunal, West Regional Bench at Mumbai [hereinafter referred to as the CESTAT ] in Appeal No. E/2740/98-Bom dated 22.03.2004, as also the order passed by the CESTAT in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant went in appeal before the Tribunal. The Tribunal, after considering the clarification issued by the Board vide communication dated 26.02.1998, held that in the case of a factory having two rolling mills installed in a factory, each being independently capable of producing rolled products and even if the second mill is being used sparingly or inefficiently, it will not alter the situation relating to the capacity installed. The relevant portion of the order of the Tribunal reads thus: 5. We have carefully considered the rival submissions and we note that the contentions of the appellants are without any merits. In terms of Rule (4) of the Hot Re-Rolling Mills Annual Capacity Determination Rules 1997, the Commissioner is require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used sparingly or inefficiently will not alter the situation relating to the capacity installed. Therefore, we hold that the Commissioner has rightly rejected the appellants contentions based on the aforesaid circular. 5. Being aggrieved by the order of the Tribunal, the appellant has filed this appeal proposing the following questions as substantial questions of law: (a) Whether the orders of the Appellate Tribunal confirming recovery of duty on the basis of Annual Production Capacity (APC) and not on the basis of actual production are correct and legal in the facts of this case? (b) Whether the orders of the Appellate Tribunal not following its previous decision in case of Didar Steel Complex Pvt. Ltd. and not rectify ..... X X X X Extracts X X X X X X X X Extracts X X X X
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