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TMI Blog2012 (7) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... y him would be crucial for determination of the annual capacity of production, the basis for payment of duty by the appellant/assessee - there cannot be any assumptions and presumptions in justifying an improper verification report by the said Superintendent which got regularized by him consequent to the failure on the part of the senior officers to get the joint verification completed on 17.10.1997 - order set aside and appeal filed by the appellant allowed - Ex.Ap.2055/05 - - - Dated:- 11-6-2012 - SHRI S.K. GAULE, DR. D.M.MISRA, JJ. Shri R.N.Bandhopadhyay, Advocate for the Appellant(s) Shri S.Misra, Addl.Commr.(A.R.) for the Revenue Per Dr. D.M.Misra. 1. The present appeal is filed against Order-in-Original No. 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of the said verification report, the ld.Commissioner has unilaterally fixed the annual capacity on 06.03.1998 at 1284.880 MT. The said order was challenged before this Tribunal which was set aside and the matter was remanded for de novo consideration vide order dated 05.05.2000. Consequently the ld.Commissioner after affording an opportunity of hearing to the appellant fixed the annual capacity of production at 1284.880 MT. Hence the appeal. 3. The Advocate appearing for the appellant had submitted that the annual capacity of production has been fixed by the ld.Commissioner solely based on the report of the Superintendent dated 25.09.1997. He has advanced a two fold argument. He has submitted that the Superintendent is not the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the adjudicating authority. He has fairly conceded that perhaps there had been no production after 01.09.1997. 5. Heard both sides and perused the records. We find that the ld.Commissioner has fixed the annual capacity of production of the appellant under the Hot Re-Rolling Steel Mills Annual Capacity Determination Rules, 1997 on the basis of the report dated 25.09.1997 of the Superintendent of central excise. We have carefully gone through the said report, (copy of which is annexed to the appeal paper book). The said report is based on a verification carried out by him on 15.09.1997 wherein he refers to declaration dated 15.09.1997. However, the ld.Advocate has brought to our notice that they have filed the declaration on 21.08.1997 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and presumptions in justifying an improper verification report by the said Superintendent which got regularized by him consequent to the failure on the part of the senior officers to get the joint verification completed on 17.10.1997. Besides, we find that the present exercise of fixation of annual capacity of production would become more or less academic in the sense that no demand has been issued pursuant to the said fixation of annual capacity of production as rightly accepted by the A.R. perhaps due to the fact that after 01.09.1997 the appellant had dismantled the rolling mill and stopped production. In these circumstances, a second remand would not serve any purpose. In these circumstances we do not find merit in the impugned order f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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