9911796707
TMI Blog2024 (9) TMI 1247X X X X Extracts X X X X X X X X Extracts X X X X ..... e order dated 03.03.2023, while admitting the present Central Excise Appeal, has framed the following questions of law:- "1. Whether Hon'ble CESTAT has erred in determining the applicability of the Notification No. 33/99-CE dated 08.07.1999 as amended. 2. Whether DIC certificate issued dated 10.05.1993 could form the basis for determination of installed capacity during pre-expansion period as it was clearly stated in the notification no. 33/99-CE dated 08.07.1999 that cut off date was to be treated on or after 24.12.1997." 3. The brief facts of the case are that the Revenue had issued a show cause notice to the sole respondent on 05.09.2003 alleging that the respondent having the factory at A.T. Road, PO-RLL Jorhat, engaged in the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dropped the charges framed under the show cause notice dated 05.09.2003, vide order dated 28.02.2006. 5. Being aggrieved with the order dated 28.02.2006, the Revenue preferred an appeal before the CESTAT, which came to be dismissed vide order dated 13.03.2018. Against the said order dated 13.03.2018 passed by the CESTAT, the present Central Excise Appeal is filed by the Revenue. 6. It is noticed that the CESTAT, in its impugned order has taken note of the fact that vide order dated 20.01.2005, the CESTAT had already affirmed the order passed by the Commissioner, Central Excise, Shillong in the case of the respondent Company for the period running from July, 1999 to May, 2002 and rejected the claim of the Revenue that the respondent Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court has observed as under:- "5. In the instant case the same question arises for consideration and the facts are almost identical. We cannot permit the Revenue to take a different stand in this case. The earlier appeal involving identical issue was not pressed and was thereafter, dismissed. The respondent having taken a conscious decision to accept the principles laid down in Pepsico India Holdings Ltd. (supra) cannot be permitted to take the opposite stand in this case. If we were to permit them to do so, the law will be in a state of confusion and will place the authorities as well as the assessees in a quandary. 9. In Jayaswals Neco Limited -Vs- Commissioner of Central Excise, Nagpur, reported in 2006 (195) ELT 142 (SC), again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid decision of the Tribunal in Hindustan Gas and Industries easel, amongst other decisions, was relied upon by the assessee before the Tribunal as noticed by the Tribunal in para 10 and dealt with in para 12 of the impugned final order, the Tribunal held that this case has no applicability to the present case. The Tribunal has, in fact, not deliberated on the said decision of a coordinate Bench of the same Tribunal and, without 9 examining the ratio therein, simply held the same to be inapplicable to the present case. 9. Assuming even if it were to disagree with the test laid down in Hindustan Gas and Industries easel in order to maintain the judicial propriety in decision-making, the Tribunal ought to have referred the matter to a larg ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
