9911796707
TMI Blog2003 (8) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... . Jain, learned Advocate, submitted that the Appellants process cotton and man-made fabrics; that on introduction of the Scheme for independent processors of Textile Fabrics with hot-air stenters in December, 1998, they filed the requisite declaration dated 18-12-1998 in terms of Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules, 1998 (ACP Rules in short); that the Commissioner by Order dated 15-1-99 fixed provisionally the annual capacity of Rs. 28.28 lakhs and duty liability at Rs. 3,00,032/- per month; that the Commissioner finally fixed duty liability at Rs. 3,49,568/- per month under Order dated 16-4-1999 on the basis of 2.33 chamber in one hot-air stenter after including the length of galleries attac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for deciding their appeal on merits. 2.3 He stated that the Commissioner (Appeals), under the impugned Order, has rejected their appeal. 3.1 The learned Advocate, further, submitted that as per the decision of the Larger Bench of the Tribunal in the case of Sangam Processors (Bhilwara) v. CCE, 2001 (127) E.L.T. 679 (T-LB), the length of galleries attached to the Chambers of hot-air stenter is not to be included in the length of a Chamber; that the said decision has been affirmed by the Supreme Court in the case of CCE v. S.P.B.L. Limited - 2002 (146) E.L.T. 254 (S.C.); that such being the legal position, no liability of differential duty arises on them; that the benefit of the law of land cannot be denied to them. 3.2 The learned Adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (T-LB) holding that the provisions of Section 11A do not apply to recovery of duty for the past period on fixation of final ACP is distinguishable on facts from the instance case; that in that case, notices had been issued under Section 11 of the ACP and not under Section 11A as in the instant case. 4. He finally, contended that since the Order dated 16-4-99 fixing duty liability was set aside by the Tribunal, the show cause notices dated 28-6-99 and 11-11-99 issued in pursuance of the said Order had become infractuous; that the Department ought to have issued fresh show cause notices in pursuance of Commissioner s Final Order dated 10-1-2000 and the earlier show cause notices could not be revived by issuing corrigenda. 5. Countering th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued for demanding duty. He relied upon the decision in Ashok Kumar Durrani v. CCE - 2003 (155) E.L.T. 63. 7. We have considered the submissions of both the sides. The undisputed facts in the present matters are that the Commissioner initially fixed the duty liability provisionally by Order dated 15-1-99 and the duty liability came to be finally determined under Order dated 10-1-2000. The said Order attained finality as the Appeal filed by the Appellant with the Tribunal was rejected as time-barred. The Appellants have to discharge their duty liability as per the Annual Capacity of Production determined by the Commissioner by Order dated 10-1-2000. They cannot claim the benefit of the decision of the Larger Bench in Sangam Processors case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance in their contention that the demand of duty as per ACP Order can be only prospective and not for the past period. Such an inference cannot be drawn from the provision contained in Rule 96ZQ. Sub-section (2) of Section 3A, under which Section the excise duty is levied, provides that where a notification is issued under sub-section (1), the Central Government by Rules, provide for determination of the annual capacity of production by the Commissioner and such annual capacity of production shall be deemed to be the annual production of such goods by such factory. Accordingly, Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules, 1998 have been framed under Notification No. 42/98-C.E. (N.T.), dated 10-12-98. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter for being re-adjudicated after affording an opportunity of being heard to the Appellant. Thus the re-adjudication was a continuous process of the determination of the annual capacity of production of the Appellants and after the capacity was determined, the show cause notices were duly amended. The ratio of the decision in the case of Ashok Kumar Durani, (supra) is not applicable as the facts are different. In that matter, the Commissioner, on remand did not furnish the copies of the relevant documents as directed by the Tribunal and secondly observed in the Order that he confirms the decision passed earlier in the Order-in-Original dated 10-12-99. In this context the Tribunal observed that the said Order dated 10-12-99 had ceased to ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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