TMI Blog2023 (10) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... as held by the Hon ble High Court in the case of M/S. BENGAL HAMMER INDUSTRIES (P) LTD. VERSUS UNION OF INDIA ORS. [ 2023 (5) TMI 437 - CALCUTTA HIGH COURT] . The order of re-determination of annual capacity without issuance of show cause notice is not sustainable. Accordingly, the impugned orders have no merits, therefore, the same are set aside. Appeal allowed. - HON BLE SHRI ASHOK JINDAL , MEMBER ( JUDICIAL ) And HON BLE SHRI K. ANPAZHAKAN , MEMBER ( TECHNICAL ) NONE for the Appellant ( s ) Shri S.Mukhopadhyay, Authorized Representative for the Revenue ORDER Per : ASHOK JINDAL : These appeals are filed by the appellants against the impugned orders wherein annual capacity of production was deter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the assessee does not challenge the order of redetermination of annual capacity of production, the appellant lose their right to question the re-fixation of annual capacity of production which has been given effect by the adjudicating authority by issuance of the show cause notice. We find that the said decision has been set aside by the Hon ble High Court in Tax Appeal No.CEXA/1/2009 and vide order dated 03.05.2023, the Hon ble High Court has observed as under:- Aggrieved by the same, the assessee preferred an appeal before the Commissioner of Central Excise, Calcutta redirecting the stand taken by them in the reply to the show cause notice. The Commissioner by an order dated 11.2.2005 dismissed the appeal solely on the ground tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. The contention of the department which is similar to the contention raised before us stating that the order of the Commissioner originally fixing the annual production capacity was not in accordance with the clarification issued by the Board dated 19.11.1998. The Tribunal pointed out that the order passed by the Commissioner was never withdrawn or challenged by the department before higher forum and, therefore, held that the said assessee had rightly discharged the duty burden. Similar issue also arose before the Tribunal in the case of Hooghly Ispat Ltd. vs. Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d if the same is permitted, the law will be in a state of confusion and will place parties as well as the assessee in a quandary. The said decision on the point were relied on by the Hon ble Supreme Court in the case of Indian Oil Corporation Versus CCE Baroda; 2006 (76) RLT 548 (SC) and in the case of Commissioner of Central Excise Mumbai Vs. Bigen Industries Limited; 2006 (197) ELT 305 (S.C.) and Jindal Dye Intermediate Limited Versus Collector of Customs, Mumbai; 2006 (197) ELT 471. The law laid down in the above decision is quite clear that once the department has accepted the orders passed in identical issue considering the scope of the revision of the annual production capacity of those units who are also carrying similar group of act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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