9911796707
TMI Blog2006 (10) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... e of a Writ of Certiorarified Mandamus to call for the records of the first-respondent in Appeal No. E/597/2004 and condonation of delay application No. E/COD/252/2004 and quash the Final Order No. 973/04 and the Miscellaneous Order No. 641/04, dated 3-11-2004, passed by the first-respondent and further direct the first-respondent to take up the appeal No. E/597/2004 for hearing on merits. 2. Heard the learned counsel for the petitioner as well as the respondents. By consent of the learned counsels, the writ petitions have been taken up for final hearing and disposal, since the facts in both the writ petitions are common and the issues to be decided are also connected to one another, a common order is passed in both the writ petitions. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sider the same and issued a letter, dated 4-12-1998, fixing the annual capacity of production at 984.299 MT, resulting in the payment of Rs. 12,303/- per month. The deemed number of utilised hours as per the Hot Re-Rolling Steel Mills (Annual Capacity Determination) Rules, 1997, for one 'batch type' furnace is 1200 hrs, whereas, it is 2400 hours per annum for one or more 'pusher type' furnace, it is stated that the petitioner did not realise that the annual capacity of production had been wrongly fixed by the Commissioner, at double the capacity of production of the petitioner's plant, due to taking the furnace as 'pusher type' instead of 'batch type', as mentioned in the certificate. The petitioner came under Rule 96ZP(3) of the Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder confirming the demand of duty rejecting the claim for re-determination of the annual capacity of production. Aggrieved by the said order of the Commissioner, the petitioner had filed an appeal No. E/225/2002, before the first-respondent, on the Duty Demand and Refund of the excess duty paid. 6. During the course of the hearing of the appeal, it was found that unless the order fixing the annual capacity was challenged, the appeal demanding the duty could not be sustained. Hence, an Appeal No. E/597/2004, was filed before the Tribunal challenging the order of fixation of annual capacity of production along with an Application No. E/COD/252/2004 for condonation of delay of 1883 days in filing the appeal. The petition to condone the dela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Central Excise, Chengalpattu Division, vide Order-in-Original No. 30/2001, dated 11-9-2001, against which the petitioner had preferred an appeal. The Commissioner (Appeals), Chennai, vide Order-in-Appeal No. 23/2002, dated 15-3-2002, had upheld the earlier order. Further, the appeal had been preferred to the CESTAT, Chennai, and the Tribunal vide its Final Order No. 283/2005 [2005 (191) E.L.T. 607 (Tri.)], dated 1-3-2005, had dismissed the appeal on the ground of delay. 8. It is the case of the respondents that the petitioner did not submit the Chartered Engineer's Certificate, Chennai, along with their declaration, dated 18-6-1998. Paragraph 4 of the counter-affidavit reads as follows : "4. In this regard, it is pertinent to note tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent from those that have been cited above. Further, on an analysis of the facts in the present case, this Court is of the considered view that there are sufficient grounds to show that the delay in challenging the Commissioner's Order fixing the annual capacity of production is neither wilful nor wonton. Further, no prejudice would be caused to the respondents, if the Appeal No. E/225 of 2002, is heard and disposed of on merits. 9. In the above facts and circumstances of the case, the writ petition No. 12944 of 2005 is allowed as prayed for by setting aside the order of the first-respondent Order No. 641/04, dated 3-11-2004, made in the condone delay Application No. E/COD/252/2004, and the Final Order No. 973/04, dated 3-11-2004 [2005 (19 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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