2000 (2) TMI 852 - AT - Customs

Summary

Issues:
- Stay application seeking stay of the order fixing revised annual capacity under the 'Hot Re-rolling Steel Mills Annual Capacity Determination Rules 1997'
- Applicability of Rule 5 of the said rules
- Provisionality of the order
- Appealability of the order

Analysis:
1. The appellant sought a stay of the order fixing the revised annual capacity under the 'Hot Re-rolling Steel Mills Annual Capacity Determination Rules 1997' on the grounds of provisional issuance and lack of hearing. The appellant cited a Tribunal decision where it was held that when the Commissioner refixes the annual capacity based on declared changes, Rule 5 of the rules shall not be applicable. The appellant argued that the order was not legal as it was based on Rule 5 instead of Rule 4(2). Additionally, the appellant referred to a case stating that once the determination of annual capacity is made, no provisionality is attached to it, making the order appealable.

2. The Department reiterated the order and referred to a Board's circular clarifying that Rule 5 would apply even when capacity is determined on changed parameters. The Department argued that the Commissioner acted in accordance with the circular, making the order legal and proper. It was also noted that a previous Tribunal decision did not consider the mentioned circular.

3. After considering the submissions and case records, the Tribunal found that the matter was covered on the aspects of appealability and applicability of Rule 5. The Tribunal observed that the Commissioner fixed the annual capacity based on Rule 5 as the newly declared parameters were less than the previous year's production. Referring to a previous Tribunal decision, the Tribunal held that Rule 5 is not applicable when the annual capacity is refixed based on declared changes. The Tribunal emphasized the need to follow the precedent and remanded the matter for reconsideration, directing the Commissioner to allow the appellant to be heard before passing a new order.

4. The Tribunal addressed the provisionality of the order, noting that a previous decision held that such determinations under the Act do not have provisionality attached, making them appealable. Consequently, the Tribunal allowed the appeal by remanding the matter for fresh consideration, emphasizing the importance of following legal precedents and providing the appellant with a hearing opportunity.