CCE Vs. URVASHI SYNTHETIC PROCESSORS (P)

JUDGEMENT

(1.) THIS appeal is filed by the revenue against the order in appeal dated 15/12/2003 which allowed the refund claim filed by the respondent.

(2.) THE relevant fact that arise for consideration are the respondent were engaged in processing of Cotton Fabric/Man Made Fabric/ Embroidery Fabric etc. on job work basis under the provisions of Section 3A of Central Excise Act, 1944. During the relevant period, the annual capacity of production under Section 3A was determined by the Commissioner of Central Excise, Kanpur on 29/03/99, after considering the galleries attached to the stenter installed in the factory of the appellant. The respondent discharged the duty liability as per the capacity determination by the Commissioner. Subsequently vide notification No. 14/2000 dated 01/03/2000, clarification was given that the galleries attached to the stenter should be excluded from the calculation for arriving at annual capacity of production. Relying upon this, the respondent filed refund claim of excess amount of duty paid by them. The adjudicating authority rejected the refund claim on the ground that once an annual capacity of production was determined and not challenged by the respondents, they cannot claim the refund. On an appeal, Commissioner (Appeal) set aside the order in original relying upon the Hon'ble Supreme Court judgment in the case of Commissioner of Central Excise, Jaipur - II v. S.P.B.L. Limited as reported at . Hence this appeal.

(3.) LEARNED DR submits that the issue is squarely covered against the respondent by the case of L. Kant Paper Mills Ltd. v. Commissioner of Central Excise, Kanpur as reported at 2004 (176) E.L.T. 498 (Tri - Del.). It is his submission that the respondent having not challenged the determination of capacity of production now cannot take the route of refund for re -determining the capacity.