TMI Blog2023 (5) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... e was not considered by the Tribunal. Interestingly, identical issue has been raised in respect of the other assessees, who are also carrying on similar production activities and one such case travelled up to the Tribunal in the case of Commissioner of Central Excise-IV vs. Hooghly Ispat Ltd. The Tribunal dismissed the appeal filed by the department and affirmed the order passed by the Commissioner of Central Excise [Appeals] was granted relief in favour of the said assessee. The learned Tribunal pointed out that the availment of MODVAT credit by the said assessee was lawful. It would be beneficial to refer to the decision of the Hon ble Supreme Court in the case of Birla Corporation Ltd. vs. CCE, [ 2005 (7) TMI 104 - SUPREME COURT ]. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate Tribunal, East Zonal Bench, Kolkata (Tribunal). The appeal was admitted on 8th April, 2009 on the following substantial question of law : Whether the Tribunal below substantially erred in law in dismissing the appeal filed by the appellant without appreciating that refixation of annual capacity of production made by the Commissioner, on reviewing his own order, without issuing any show cause notice and without giving an opportunity of hearing inasmuch as the order of the Commissioner was contrary to the principles of natural justice and fair play? We have heard Mr. Arijit Chakraborty, learned counsel assisted by Mr. N.K. Chowdhury, learned advocate appearing for the appellant/assessee and Mr. K.K. Maiti, learned standing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant/assessee as 20326.919 MT and 14228.843 MT (70% non alloy steel) and fixed duty liability for the year 1997-98. The said order further stated that the remaining 30% of the annual capacity of production, i.e. 6098.076 MT alloy steel as declared by the assessee or the actual production of alloy steel whichever is higher, is to be cleared after discharging the central excise duty liability under Section 3 of the Central Excise Act, 1944. After the instruction given by the Board, the Commissioner of Central Excise appears to have unilaterally re-determined the annual production capacity of the appellant and admittedly no opportunity was granted to the appellant/assessee to place materials as no show cause notice was issued by the Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by them under the provisions of Section 3 of the Act. The Commissioner examined the matter and by order dated 3rd April, 1998 determined the annual capacity of the unit 20326.919 MT and 14228.843 MT (70 per cent non-alloy steel) and, accordingly, fixed the duty liability. Regarding 30% of the alloy steel products it was ordered that the same was to be cleared from the factory under the provision of Section 3 of the Act. Subsequently, a corrigendum was also issued on 22.9.1998. Based on the said order Joint Commissioner of Central Excise also determined the duty liability. Thereafter, the show cause notice-cum-demand was issued on 28.5.2001 stating that the assessee was required to pay duty as per the capacity determined by the Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er attained finality accepted by the department not appealed against the review, the order could not have been done unilaterally by an officer, who is junior in rank than the Commissioner. This contention raised by the assessee was not considered by the Tribunal. Interestingly, identical issue has been raised in respect of the other assessees, who are also carrying on similar production activities and one such case travelled up to the Tribunal in the case of Hooghly Ispact Ltd. and in appeal no.E- 718-719 of 2001 [Commissioner of Central Excise-IV vs. Hooghly Ispat Ltd.] The Tribunal by judgment dated 22.1.2022 dismissed the appeal filed by the department and affirmed the order passed by the Commissioner of Central Excise [Appeals] was gran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred any appeal against those decisions of the Tribunal which were decided in favour of those assessees on an identical issue. In this regard, it would be beneficial to refer to the decision of the Hon ble Supreme Court in the case of Birla Corporation Ltd. vs. CCE, 2005 69 RLT 580 (SC). The Hon ble Supreme Court held when a same question arises for consideration on identical fact, the revenue cannot be permitted to take a different stand and it was pointed out that earlier appeal involving the identical issue was not pressed and dismissed and the revenue having taken a conscious decision to accept the principles laid down in the said order cannot be permitted to take opposite stand in a different manner and if the same is permitted, the la ..... X X X X Extracts X X X X X X X X Extracts X X X X
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