2016 (2) TMI 286 - AT - Central Excise

Discharge of duty liability from August, 1997 to March, 2000 based upon the annual capacity of production - whether the demand raised by the show caused notice consequent to the determination of production capacity are correct or otherwise? - Held that - It can be seen from the reproduced letter that Commissioner of Central Excise, Goa had finally determined the annual capacity of production. It is also to be noted that this letter is dated 13.03.2000, issued well after the judgment of the Hon ble High Court of Bombay (judgment dated 31/03/1998). There is no dispute as to the contents of the above said letter and appellant has also not disputed the fact of receipt of said letter. If that be so, we find that the case of the appellant that the annual capacity of production has not determined finally is factually incorrect. Secondly, on specific query raised from the bench, it was informed that the appellant has not challenged this order dated 13.03.2000 which fixed the annual capacity of production of the appellant. It is settled law that, an order, which is appealable is not appealed against, it attains finality and binds a person against whom said order is issued. In the absence of any challenge and appeal to final determination of the production capacity, we find the efforts of the appellant to contest the findings in the impugned order are incorrect and cannot carry their case any further. Thirdly, we find that the omission of section 3A from the Central Excise Tariff Act from 1.3.2001, may not have much consequence on the case in hand, in as much that production capacity was finally determined in March 2000, which remained in challenge, the appellant should have discharged the duty liability based upon such annual capacity of production as determined by the learned Commissioner. In the absence of such discharge of duty liability the lower authorities were left with no choice but to issue show cause notices for recovery of the duty liability for the period in question. It can be said that these show cause notices in fasten of any new liability of the appellant to get attracted under the mischief of proceeding imitated after the omission of the provisions of section 3A from the Central Excise Act 1944. Fourthly, as argued by the appellant that the show cause notice invokes the determination as done by the learned Commissioner by a letter and does not invoke the letter dated 13.3.2000, hence the demands are incorrect, do not appeal to us, in as much the said letter dated 13.3.2000, which finally fixed the annual production capacity was in continuance of the letter dated 26.09.1997, hence the preposition of the learned counsel needs to be rejected. If there is a confirmation of the provisional fixation of the annual production capacity, whether the show cause notice invokes of the provisional determination or otherwise, also in the absence of any challenge to the annual production capacity finally determined, the duty liability along with interest arises as also the penal provisions which are invoked in this case. - Decided against assessee

Summary

Issues:
1. Whether the appellant is liable for duty liability based on the annual capacity of production determined by lower authorities from August 1997 to March 2000.

Detailed Analysis:

Issue 1:
The primary issue in this case revolves around the determination of the appellant's duty liability based on the annual capacity of production established by the lower authorities between August 1997 and March 2000. The appellant, engaged in manufacturing m.s. ingots, sought a change in the capacity fixation based on furnace capacity, which was not accepted by the lower authorities. The Commissioner of Customs and Central Excise Goa provisionally fixed the production capacity in 1997, which was later confirmed in a letter dated 13.03.2000. The appellant contested the determination, citing lack of consideration for electricity supply limitations. The appellant argued that the annual capacity was not conclusively determined, as per the High Court's direction, rendering the demands unsustainable.

Analysis:
The Tribunal reviewed the sequence of events and found that the Commissioner had indeed finalized the annual production capacity in the letter dated 13.03.2000. Despite the High Court's directive to reconsider the capacity, the Commissioner's determination stood unchallenged by the appellant. The Tribunal emphasized that the failure to challenge an appealable order, as per Supreme Court precedent, results in the order's finality. The omission of Section 3A from the Central Excise Tariff Act in 2001 did not absolve the appellant from the duty liability based on the finalized production capacity. The Tribunal rejected the appellant's argument that the show cause notice did not refer to the final determination, stating that the duty liability arose regardless of the notice's wording due to the confirmed capacity. Consequently, the Tribunal upheld the lower authorities' decision, rejecting the appeal for lack of merit.

In conclusion, the Tribunal ruled that the appellant was indeed liable for duty based on the final annual production capacity determined by the Commissioner, dismissing the appeal and upholding the lower authorities' decision.