TMI Blog2004 (12) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant period. Appeal No. E/567/2004 is against an order of the Commissioner of Central Excise, dated 16-1-2004, determining their Annual Capacity of Production (ACP) for the period 1-9-1997 to 26-7-1999. Appeal No. E/348/2001 is against an earlier order passed by the Commissioner determining the ACP for the period 27-7-1999 to 31-12-1999. Appeal No. E/1418/2004, which is a belated appeal accompanied by an application for condonation of the delay, is against demand of duty confirmed by the Commissioner in adjudication of six show cause notices, dated 3-9-1998, 3-9-1998, 23-2-1999, 20-4-1999, 29-9-1999 and 13-1-2000. Appeal No. E/303/2002 is against a penalty imposed on the appellants by the Commissioner in adjudication of the penalty-rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo more MISC applications before us, both in Appeal No. E/303/2002, one seeking waiver of pre-deposit and stay of recovery in respect of the penalty amount and the other seeking early disposal of the appeal. Now that we have taken up the appeal itself for final disposal, both the applications are disposed of as infructuous. 4.Yet another MISC application, which survives, is an application for waiver of pre-deposit and stay of recovery in respect of the duty amount. This application is in Appeal No. E/1418/04. We grant waiver of pre deposit of the duty amount for disposal of the appeal. 5.The demands of duty challenged in Appeal No. E/1418/2004 relate to six show cause notices issued prior to 1-2-2000 (the date of the first ACP order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner for action in the matter. On 2-9-1997, a team of officers and technical experts visited the factory and verified the parameters. Later on, by order dated 16-1-2004, learned Commissioner determined the ACP of the mill by applying Rule 5 of the ACD Rules. Accordingly, the ACP so determined was 37,662 MTs per year, presumably for the period 1-9-1997 to 26-7-1999. 8.The facts relating to Appeal No. E/348/2001, stated by Counsel, are the following :- On 15-10-1998, the appellants wrote to the Commissioner proposing to change the parameters of their Tor Mill, and requested him to approve the change, after necessary inspection. As there was no response, on 27-7-1999, the appellants sent another letter to the Commissioner saying that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Awadh Alloys (P) Ltd. v. CCE, Meerut, 1999 (112) E.L.T. 719 (Tribunal) (2) Sawanmal Shibumal Steel Rolling Mills v CCE, Chandigarh-I, 2001 (127) E.L.T. 46 (Tri. -LB), and (3) CCE, Chandigarh-I v. Doaba Steel Rolling Mills, 2002 (139) E.L.T. 285 (P H). Relying on the above case-law, learned Counsel argues that the ACP requires to be re-determined under Rule 3(3) of ACD Rules. 11.Ld. SDR refers to Rule 4(2) of ACD Rules and submits that a mandatory requirement of this provision was not fulfilled by the assessee inasmuch as they had not obtained written approval of the Commissioner for changing the parameters. According to learned SDR, on account of non-fulfilment of this requirement, it was open to the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any specific date. 12.In his rejoinder, the learned Counsel, relying on the Tribunal's decision in Didar Steel Complex P. Ltd. v. CCE, Chandigarh-II, Del, 2003 (54) RLT 537 (CEGAT-Del.), submits that, in the facts and circumstances of the case, change of parameters should be treated as having taken effect on the date of intimation. Ld. Counsel has finally pointed out an arithmetical error in the Commissioner's order dated 16-1-2004. She took 3.466 instead of 2.466 as the value for "w" in the formula for calculation of ACP. 13.After giving our careful consideration to the submissions, we find that the question whether Rule 5 of ACD Rules is applicable to the facts of this case can be settled in the light of the Tribunal's Larger Bench d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to fix it. In the above circumstances, the date (16-8-1997) specified by the party in their letter dated 13-8-1997 should be treated as the date from which the changed parameters of the mill would be applicable, for both the Tor Section Mills. Insofar as the subsequent change of parameters of the Tor Mill is concerned, the situation is different. We have already noted that no specific date of change of parameters of this Mill was discernible from the assessee's letters dated 15-10-1998 and 27-7-1999. The fact, which thus emerges, is that the assessee themselves did not specify any date for commencement of work of their Tor Mill with changed parameters. In such a situation, the date (27-7-1999) of the assessee's second letter, shall be tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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