2012 (8) TMI 76 - AT - Central Excise

Duty demand - on the basis of annual production capacity under Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules 1998 Held that - Their annual production capacity was first assessed provisionally which was finalized by order dated 01/07/99 under Section 3A (2) of the Central Excise Act 1944. Against that they have made a representation to the Commissioner of Central Excise for re-determination of their annual production capacity as the annual capacity of production was fixed is not proper as there were one Stenter was permanently closed under Section 3A (3) of the Central Excise Act - no re-determination of annual capacity of production was done therefore impugned orders are not sustainable - Annual capacity of production has not been determined following the provisions of Section 3A (4) of the Central Excise Act 1994 - matter remanded to the adjudicating authority to re-determine the annual capacity of production

Summary

Issues:
1. Confirmation of duty demand based on annual production capacity under Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules, 1998.
2. Provisional assessment of annual production capacity and subsequent re-determination.
3. Finality of the order determining annual production capacity.
4. Compliance with Section 3A sub-section (4) of the Central Excise Act, 1994.

Analysis:

1. The appellants filed appeals against the impugned order confirming duty demand based on the annual production capacity determined under the Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules, 1998. The Tribunal decided to dispose of the appeals without pre-deposit after hearing both sides.

2. The appellants argued that their annual production capacity was initially assessed provisionally and finalized in 1999 under Section 3A (2) of the Central Excise Act, 1944. They requested a re-determination as one Stenter was permanently closed under Section 3A (3), which was not considered. The Commissioner did not re-determine the capacity, making the impugned orders unsustainable.

3. On the contrary, the Additional Commissioner contended that the final order determining the annual production capacity in 1999 was not challenged through an appeal, thus becoming final. Consequently, the appellants were obligated to pay duty as per the said final order. However, the Tribunal noted that the re-determination process as per Section 3A (4) was not followed by the Commissioner, rendering the finality argument untenable.

4. Considering the provisions of Section 3A sub-section (4) of the Central Excise Act, 1994, which requires re-determination of annual production capacity upon objection by the assessee, the Tribunal remanded the matter to the adjudicating authority. The authority was instructed to re-determine the annual production capacity after allowing the appellants an opportunity to present documentary evidence supporting their claim. Consequently, all appeals and stay applications were disposed of accordingly.