2012 (12) TMI 387 - AT - Central Excise

Restoration of appeal determination of annual production capacity Held that - the finding of the Tribunal s Final Order No. 812/2010-EX, dated 17-8-2010 that the Commissioner s order determining the annual production capacity of the Appellant s factory was not challenged by them in the manner known to the law is factually incorrect. - In fact, it appears that this matter is pending before the Apex Court in SLP No. 22134/2008 filed by the Appellant. - ROA is allowed

Summary

Issues:
Restoration of appeal dismissed by Tribunal based on non-challenge of Commissioner's order determining duty liability and annual capacity of production.

Analysis:
1. The appellant manufactured non-alloy steel ingots subject to central excise duty under Chapter 72 during the disputed period from 1-9-1997 to 31-3-2000. Duty was chargeable under the Compounded Levy Scheme, and the appellant filed declarations under the IFCA Rules for annual production capacity determination. The Commissioner determined the annual capacity, leading to a duty liability discrepancy of Rs. 16,30,142, resulting in a show cause notice and subsequent confirmation of demand by the Commissioner.

2. The Tribunal initially allowed the appeal against the Commissioner's order, citing the omission of Section 3A of the Central Excise Act by the Finance Act, 2001. However, the High Court set aside the Tribunal's decision, directing a review on merits. The Tribunal then dismissed the appeal due to the appellant's failure to challenge the Commissioner's order effectively, as per the Tribunal's interpretation.

3. The appellant sought restoration of the appeal, arguing that challenges to the Commissioner's orders had been made before various forums, including the Tribunal and the High Court. The appellant contended that the dismissal was ex parte and requested recall based on the absence of a party due to legitimate reasons, citing legal precedents supporting appeal restoration in such cases.

4. The Departmental Representative opposed the restoration, emphasizing the lack of evidence showing a proper challenge to the Commissioner's order, as required by law.

5. The Tribunal found that the dismissal was unjust as the appellant was not given a fair opportunity to present their case during the hearing. The Tribunal also noted discrepancies in the interpretation of whether the Commissioner's order had been effectively challenged, citing previous legal proceedings and pending matters before higher courts.

6. Ultimately, the Tribunal recalled the order dismissing the appeal, acknowledging the pending legal proceedings and the factual inaccuracies in the interpretation of the challenge to the Commissioner's order. The appeal was restored, allowing for further review and consideration based on the presented arguments and legal complexities involved.