2003 (9) TMI 212 - AT - Central Excise

Summary

Issues:
Capacity determination under Rule 5 of Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997; Application of Rule 5 in initial capacity determination; Validity of Asstt. Commissioner's order; Appeal against non-speaking order; Financial hardship consideration for deposit waiver.

Capacity Determination under Rule 5:
The case involved a steel rolling mills where the Asstt. Commissioner determined the annual production capacity based on Rule 5 of the Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997. The applicant did not appeal this decision and did not pay the duty as determined. The applicant argued that Rule 5 should not have been applied, citing a Tribunal decision that found determining capacity based on previous year's production unreasonable in case of machinery change. However, the Tribunal noted that the applicant did not challenge the capacity determination initially, and the provision of Rule 5 applied in such cases.

Application of Rule 5 in Initial Capacity Determination:
The Tribunal differentiated between cases involving a change in determined capacity and the initial capacity determination. It held that in the absence of a challenge to the initial capacity determination, Rule 5 would apply. The Tribunal referenced a decision stating that an order must be declared non est by a competent authority to be considered invalid, emphasizing that the Tribunal's actions indicated recognition of the Asstt. Commissioner's order.

Validity of Asstt. Commissioner's Order and Appeal Against Non-Speaking Order:
The applicant contended that the Asstt. Commissioner's order was not a speaking order, relying on a decision stating that a non-speaking order is not appealable. However, the Tribunal rejected this argument, highlighting that the Tribunal recognized the order's validity through its actions, including remanding the matter, which would not have been possible without setting aside the order.

Financial Hardship Consideration for Deposit Waiver:
The Tribunal, considering the circumstances, directed the applicant to deposit a portion of the demanded duty and waived the remaining amount, subject to compliance within a specified timeframe. The decision aimed to balance the duty payment with the applicant's financial situation, as financial hardship was not pleaded in this case.

In conclusion, the Tribunal upheld the application of Rule 5 for initial capacity determination, emphasized the validity of the Asstt. Commissioner's order, rejected the appeal against the non-speaking order argument, and considered financial hardship in granting a deposit waiver for the duty amount.