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TMI Blog2017 (1) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... es. Demand show-cause notices were issued to the appellant seeking to recover duty on the basis of capacity determined under the Annual Capacity Determination Rule 1988. The demands were dropped by the Asst. Commissioner. The said order of the Asst. Commissioner was challenged by the Revenue before the Commissioner (Appeals) on the grounds that the capacity of production in the appellant's case was determined by the Commissioner vide order dated 13.10.1999 and the same has not been challenged by the appellant. It was argued by Revenue that since the capacity of production determined by the Commissioner has not been challenged by the appellant, it is not open to the Asst. Commissioner to revise the demands or not including the galleries in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is not open to them to challenge the determination of capacity before the Asst. Commissioner. 5. We have gone through the rival submissions. We find that the first question that needs to be answered is if the order of Commissioner determining Annual Production Capacity is an appellable order or not. We find that the Hon'ble High Court of Gujarat at Ahmedabad in the case of Premraj Dyeing & Printing Mills Pvt. Ltd (supra) has observed as follows:- "15. From the above set of Rules, it can be seen that the entire exercise of determination of annual production capacity is to be made by the competent authority, that is, the Deputy Commissioner or the Assistant Commissioner, as the case may be. At a such stage, no hearing of the independ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pacity, on the basis of the declaration made by the independent processor and if found necessary with the aid of consultation of the technical expert, it becomes clear that the determination which is arrived at cannot be termed as a judicial or even a quasi-judicial order. It is an administrative exercise undertaken by the prescribed authority of determining the Annual Production Capacity and other related issues. The appeal envisaged under Section 35 of the Act would necessarily be against quasi-judicial order that the competent authority may pass under the Act deciding the list between the parties. In our view, therefore, mere determination of an Annual Production Capacity by the prescribed authority under the Rules of 2000 or even under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed an order of such classification. Such order though appealable, was not challenged by the assessee. The assessee, however, filed a refund claim. The Apex Court observed that there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing the order. It was, thus, clearly a case where an order which was appealable was not challenged by the party. The legality th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tay was granted by the Apex Court. Under this circumstance, the Commissioner of Central Excise while determining the annual capacity of the petitioner's unit though passed an order dated 28th June, 1999 styling it as final order but with the following rider : "It may be noted that this determination has been made on the basis of the existing parameters. In case there is any change in any relevant parameters, M/s. Mahalakshmi Dying and Printing Works are required to follow the provisions of the Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules, 1998 and the duty liability would be subject to redetermination". Subsequent to the above order, a circular was issued by the Central Board of Excise and Customs da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f SPBL Ltd., the inclusion of length of the galleries having no fan or radiator attached to it in counting number of chambers was rendered illegal. It seems that despite the aforesaid law laid down by the Apex Court entertaining the belief that order dated 1st July, 1999 is a final order, no further order redetermining the capacity was passed." 5.2 We find that the decision of Hon'ble High Court of Bombay in the case of Mahalaxmit Dyeing & Ptg (I) Pvt. Ltd. squarely covers the issue, it is not open to us to take any alternate view. Respectively following the decision of Hon'ble High Court of Gujarat at Ahmedabad in the case of Premraj Dyeing & Printing Mills Pvt. Ltd (supra), we hold that the order of Commissioner determining Annua ..... X X X X Extracts X X X X X X X X Extracts X X X X
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