2002 (3) TMI 159 - AT - Central Excise

Summary

Issues:
- Review of final determination of annual production capacity
- Power of review under Section 35F of the Central Excise Act
- Competency of Commissioner to review own orders

Review of final determination of annual production capacity:
The case involved an appeal by M/s. Arvind Refractories Pvt. Ltd. regarding the duty payment for the manufacture of MS Ingots under Section 3A of the Central Excise Act. The Commissioner had determined the annual production capacity, leading to a dispute regarding the authority's power to review such determinations. The appellants argued that the adjudicating authority lacked the power under Rule 35E(2) to review its own orders and that the power of review must be expressly conferred by statute, not assumed.

Power of review under Section 35F of the Central Excise Act:
The Tribunal considered the arguments presented by both parties, including the case law cited by the appellants and the learned DR. The Tribunal emphasized that Section 35F of the Central Excise Act clearly outlines the power of review. It was noted that the Commissioner, having already determined the annual production capacity, was not competent to review his own orders. The Tribunal rejected the argument that the assessment could be reviewed to correct a situation, emphasizing that the power of review was not applicable in the present case based on the facts and legal provisions.

Competency of Commissioner to review own orders:
In analyzing the case law cited by the learned DR and the evidence on record, the Tribunal concluded that the Commissioner did not have the authority to review his own orders once the final determination of the annual production capacity had been made. The Tribunal held that the order passed in review was a nullity in law, affirming that the Commissioner had not been empowered to review his own orders in this context. Consequently, the Tribunal allowed the stay petition and the appeal filed by the assessee based on these findings.