2010 (6) TMI 443 - AT - Central Excise

Production capacity based duty annual capacity period of limitation - There was not even communication by the appellants to the authority about any reason for their absence - While finalizing the provisional assessment, the authority confirmed the capacity as was provisionally decided under order dated 1st April, 1998 and also confirmed the duty liability fixed thereunder - it cannot be said that the authority did not decide the matter within the reasonable period of time Limitation - it cannot be disputed that, bearing in mind the provisions of law comprised under Rule 3(4) of the Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997, the Commissioner is expected to determine the annual capacity as expeditiously as possible on completion of the verification of the declaration filed by the party. However, there is no limitation prescribed for the same. - an assessee cannot accuse the adjudicating authority of undue delay in deciding the matter unless he performs his obligation in respect of necessary co-operation to be rendered to the authority in furnishing of the materials necessary to determine the capacity. Failure on the part of the assessee in that regard cannot be basis to interfere in the order passed by the authority finalizing the provisional assessment in that regard even beyond the period of five years.

Summary

Issues:
1. Finalization of annual capacity and duty liability for a hot re-rolling steel mill.
2. Challenge to the finalization order on grounds of time limitation and factory closure.
3. Interpretation of rules regarding finalization of capacity and duty liability.
4. Applicability of case laws in similar matters.
5. Consideration of abatement claim not raised before the original authority.

Analysis:
The appeal before the Appellate Tribunal arose from an order passed by the Commissioner finalizing the annual capacity and duty liability for a hot re-rolling steel mill. The appellants challenged the order on the grounds that the finalization exceeded the reasonable time limit and that the mill had been permanently closed since 1999. The Tribunal considered the provisions of Rule 3(4) of the Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997, which require expeditious decision-making by the authority. However, there is no specific time limit prescribed. The Tribunal emphasized that cooperation from the manufacturer is crucial for timely finalization. In this case, the authority provided opportunities for the appellants to be heard but they failed to appear, leading to an ex parte decision. The Tribunal held that the authority acted within a reasonable period despite the absence of the appellants.

Regarding the time limit issue, the Tribunal distinguished the case law cited by the appellants, stating that the facts and legal points were different. The Tribunal highlighted that the authority's actions were based on available records and the failure of the appellants to cooperate. The Tribunal also addressed the challenge related to the alleged factory closure, emphasizing that such claims must be raised before the original authority. As the closure fact was not presented during the proceedings, the Tribunal could not consider it. The Tribunal referenced a case where an abatement claim was rejected, clarifying that it was not directly related to the finalization of provisional assessment.

Ultimately, the Tribunal dismissed the appeal, leaving the issue of abatement open for the lower authority to address. The Tribunal emphasized that without adjudication on the abatement claim, it would be premature to express any opinion. The decision underscored the importance of raising all relevant issues before the original authority for proper consideration and adjudication.

In conclusion, the judgment highlighted the significance of timely cooperation from manufacturers, the necessity of raising all relevant issues before the adjudicating authority, and the limitations on appellate intervention based on facts and records available during the original proceedings.