9911796707
TMI Blog2005 (2) TMI 724X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (ACP) of the appellants re-rolling mill. The Commissioner had determined their ACP in terms of Rule 5 of the Hot Re-Rolling Steel Mills Annual Capacity Determination Rules, 1997 (ACD Rules, for short). The validity of the said Rule was under challenge before the Hon ble High Court of Madras in a batch of Writ petitions including Writ Petition No. 14672/97 filed by the Madras Steel Re-rollers Association. It was during the pendency of these Writ Petitions that the Commissioner passed the impugned order dated 26-3-1998, wherein he had added a rider reading thus : The above order is without prejudice and subject to the outcome of the Writ petitions pending before the High Court of Madras . The Writ petitions were dismissed by the High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been different. Ld. Counsel has reiterated other grounds and has also argued that, on account of the expression without prejudice having been used in the impugned order, the appellants were entitled to challenge the order at any stage during the course of its implementation. According to him, the proceedings in Appeal No. E/354/2003 (arising from show-cause notices issued by the Department demanding duty from the appellants on the basis of the ACP determined on 26-3-1998) are in the nature of execution of the ACP order of the Commissioner and, therefore, an appeal against the ACP order could be filed at any time during the pendency of Appeal No. E/354/2003. In this connection, ld. Counsel has relied on the provisions of the Code of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stries [2004 (167) E.L.T. A98 (S.C.)]. Ld. SDR has also sought to distinguish the case of Kanishk Steel Industries. 6.We have considered the submissions. Ld. advocate has dwelt at length on the expression without prejudice used in the impugned order dated 26-3-1998, while arguing that the order had no finality till the disposal of Writ Petitions by the High Court and could be appealed against at any stage of proceedings pursuant to the demand notices which were issued on the basis of the ACP order. It has been argued that the determination of ACP under order dated 26-3-1998 was without prejudice to the party s right to have their ACP redetermined in future. Support has been drawn from the Supreme Court s judgment in Pratap Rai s case ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner. Significantly, the expression without prejudice in the said sentence is not prefixed or suffixed by any comma unlike in the Appellate Collector s order considered by the Supreme Court in Pratap Rai s case and is seen used in conjunction with subject . The word to used next to subject is shared by the expression without prejudice and the word subject for their connectivity to the remaining part of the sentence. One can only interpret the sentence as meaning that the order is without prejudice to, and subject to the outcome of the Writ Petitions. It has no other meaning. The expression without prejudice to and subject to must be read synonymously. The Commissioner s order dated 26-3-1998 determined the ACP of the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em by the Department on the basis of the final ACP determined by the Commissioner in order dated 26-3-1998, they did not choose to challenge the ACP order. It was argued that they could validly challenge the order at any time during the proceedings pursuant to the demand notices. This proposition is not supported by any provision of the Central Excise Act, nor by any case law. It has not been shown to us that the provisions of the Code of Civil Procedure are applicable to the quasi-judicial proceedings under the Central Excise Act. This apart, the above proposition is inconsistent with the very fact that the appellants have applied for condonation of delay of the appeal filed against the Commissioner s order dated 26-3-1998. The delay is of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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