2007 (7) TMI 557 - AT - Central Excise

Summary

Issues:
1. Rectification of mistake in the impugned order regarding the applicability of Rule 5 of the Annual Capacity Determination Rules, 1997 when there is a reduction in annual production capacity.

Analysis:
The judgment by the Appellate Tribunal CESTAT, Ahmedabad dealt with an application for rectification of mistake (ROM) in the impugned order regarding the interpretation and application of Rule 5 of the Annual Capacity Determination Rules, 1997. The issue revolved around whether Rule 5 is applicable when there is a change in machinery leading to a reduction in annual production capacity. The appellant relied on a previous decision by the Punjab & Haryana High Court, highlighting that Rule 5 cannot be invoked when a unit makes changes resulting in decreased production. The appeal was initially dismissed based on this interpretation.

In the ROM application, the appellant argued that the proposition from the Punjab & Haryana High Court was misconstrued in the impugned order. It was contended that when production capacity decreases due to changes in machinery, the duty should be levied based on the decreased capacity, not the previous year's fixed capacity. Reference was made to another case where it was clarified that Rule 5 is not applicable in cases of decreased production due to machinery changes, while Rules 9 and 10 apply in cases of production increase or maintenance of equilibrium.

The Respondent, represented by the Learned DR, argued that since the appellant did not challenge the Annual Capacity Production (ACP) fixed, the duty liability should be based on the ACP of the previous year, not the decreased production. It was pointed out that the issue of challenging the ACP fixed was not raised in the appeal before the Tribunal. Additionally, there was a mention of a misinterpretation of the pre-deposit requirement as per the High Court's judgment on Rule 5.

After hearing both sides, the Tribunal concluded that the proposition from the Punjab & Haryana High Court had been misconstrued, leading to the dismissal of the appeal. The Tribunal rectified the mistake by setting aside the impugned order and allowing the appeal. The final decision stated that Rule 5 of the ACP Rules is not applicable in cases of reduced capacity, and the appellant is entitled to pay based on the decreased capacity. Therefore, the ROM was allowed, and the appeal was granted in favor of the appellant.