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2009 (2) TMI 642 - AT - Central Excise
Issues involved: Appeal against rejection of application under compounded levy scheme and challenge to the fixation of Annual Capacity of Production (ACP).
The appellant's appeal was rejected on the ground that once they opted for the compounded levy scheme, they could not revert back to payment of duty based on actual production. The appellant filed a ROM application stating that the issue before the Bench was not the same as the one decided by the Commissioner. The Commissioner's order left the question of fixation of ACP open, and the Bombay High Court's decision was in respect of multiple parties with similar orders. The Tribunal noted that in the present case, no duty was confirmed, and the order challenged was regarding the ACP. The appellant agreed that since the order left the ACP open, there was no grievance on their part, and the appeal could be dismissed as withdrawn. The Revenue raised a preliminary objection on the point of limitation, arguing that the ROM application filed on 20-2-2005 was barred by the six-month limitation period u/s 35C(2) from the date of the order on 28-8-2003. The Revenue agreed with the appellant that the appeal should be dismissed as infructuous. The appellant referred to a decision of the Gujarat High Court stating that the period of limitation for filing a ROM application should be computed from the date of receipt of the order, not the date of the order itself. The Tribunal found no merit in the Revenue's preliminary objection based on this judgment and proceeded to decide the ROM application. After reviewing the submissions and the impugned order, the Tribunal observed that the Commissioner had not determined the ACP and had left the matter open. Consequently, there was no cause for the appellant to challenge the order. Both parties agreed that the appeal should be dismissed as infructuous. The Tribunal withdrew the earlier order and decided to dismiss the appeal as infructuous and withdrawn. The ROM application and the appeal were disposed of accordingly.
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