2004 (6) TMI 481 - AT - Central Excise

Summary

Issues: Condonation of delay in filing the appeal, determination of Annual Capacity of Production (ACP) by the Commissioner, challenge to Commissioner's order, sustainability of Commissioner's order, relevance of past changes in mill parameters, demands of duty and penalty, relevance of High Court's order.

The judgment deals with an application for condonation of a 267-day delay in filing Appeal No. E/348/2001. The applicants were involved in manufacturing re-rolled products under the compounded levy scheme. The delay was due to the lack of a specific advice for filing an appeal when the Annual Capacity of Production (ACP) was originally determined by the jurisdictional Commissioner and communicated to the party. Despite a significant delay, the Tribunal considered the peculiar circumstances and the statutory remedy available to the party. The party had filed an appeal that was dismissed on the ground of limitation, leading them to approach the Madras High Court, which directed the Commissioner to pass a proper order determining the ACP in accordance with the law.

The Commissioner subsequently determined the ACP for the relevant period based on the AC's letter dated 30-9-1997. However, the party had made changes to the mill parameters twice, on 16-8-1997 and 15-10-1998, both duly intimated to the Commissioner. The department issued show cause notices demanding duty based on the ACP communicated earlier, which led to adjudication by the Commissioner resulting in demands for duty and penalties. The party filed appeals against these orders with the Tribunal. The appeal in question challenged the Commissioner's order of 1-2-2000, which determined the ACP without considering the earlier change of parameters. The Tribunal found that the Commissioner's order was not sustainable in light of the High Court's directive.

The Tribunal noted that failure to entertain the application would result in gross injustice to the assessee. Citing a Supreme Court ruling, the Tribunal emphasized the relevance of considering whether the party would suffer gross injustice and irreparable legal injury if the delay in filing the appeal was not condoned. Therefore, the Tribunal concluded that the delay in the appeal should be condoned to prevent such injustice and ordered accordingly.