2003 (10) TMI 523 - AT - Central Excise

Summary

Issues:
1. Delay in filing the appeal and condonation of the delay.
2. Appealability of the provisional assessment order.
3. Determination of annual capacity production under Section 3A(4) of the Act.

Analysis:
1. The Counsel for the appellant argued for condonation of the delay of 1646 days in filing the appeal, citing a Bombay High Court decision. The delay was claimed to be non-attributable to the party. However, the DR contended that apart from the substantial delay, the impugned order was provisional and not appealable under Section 35B of the Act, requiring a final decision for appeal. The Tribunal dismissed the appeal as not maintainable due to the delay and the provisional nature of the order.

2. The appellant's Counsel mentioned unsuccessful attempts to finalize the provisional assessment with the Commissioner, leading to the appeal filing. The issue related to the determination of annual capacity production under Section 3A(4) of the Act, which the Counsel argued made the appeal to the Tribunal valid. Referring to past decisions, the Counsel asserted the appeal's legitimacy. However, the Tribunal clarified that no appeal lies against a provisional order by the Commissioner, emphasizing that the appeal was dismissed due to its non-maintainability.

3. The Tribunal's analysis highlighted that the issue of appealability concerning the determination of annual production under Section 3A(4) was not a subject in the referenced case law. It was noted that while redetermination of capacities was required upon request, the order under Section 3A(2) was not appealable. The Tribunal emphasized that the Commissioner must redetermine capacities upon request but reiterated that no appeal to the Tribunal was permissible against a provisional order. Consequently, the appeal was dismissed based on its non-maintainability.