SHIV SHAKTI TEXTILE INDUSTRIES Vs. CCE-II/III

JUDGEMENT

(1.) BOTH these appeals raise a common question of law and facts and hence they are taken up together for disposal as per law. The appellants had prayed for re -determination of the Annual Capacity of Production as the same was fixed in terms of Section 3A of the Central Excise Act. He had also asked for refund of the amount. It was his connection that the Buffer area in the gallery is not required to be taken into consideration for determining the length of the chamber as held by the Larger Bench in the case of Sangam Processors Bhilwara Ltd. v. CCE, Jaipur and in the case of R.M. Gupta Textiles P. Ltd. v. CCE, Hyderabad -II - 2000 (122) ELT 129 : 2000 (92) ECR 492 (T). It is also submitted that the findings recorded by the authorities that the appellant had not challenged the provisional fixation of the Annual Capacity is not a correct order as the Sub -section 2 of Rule 3A itself provides for filing an application for re -determination of Annual Capacity of Production which they had done so and the same was required to have been accepted. It is further submitted that the Kolkata Bench in the case of R.S. Industries v. CCE, Kolkata -II 2004 (94) ECC 345 (Tri) has also set aside similar order and not rejected the re -fixation of the Annual Capacity as prayed by the appellants.

(2.) THE learned Counsels submitted that as the issue is no longer res integra, the appeals be allowed by holding that the Buffer area in the Gallery of Hot Air Stentor of an Independent Textile Processor is not required to be included in the measurement of chambers of the Stentor for the purpose of levy of duty of excise under Notification No. 42/98 -CE (NT) dated 12.12.1998. He also submitted that the duty, which has been paid under protest, is required to refunded them. He submits that the Tribunal, in the case of Shivanshi Ferrous P. Ltd. v. CCE, Kanpur (Tribunal) have clearly held that the Commissioner is bound to re -determine the Annual Production Capacity in terms of Section 3A(4) if there is a request for re -determination and to give an opportunity of hearing to the assessee to adequately explain the case. Therefore, he submits that the prayer made by the appellant for re -determination to exclude this portion was justified and the Commissioner was not justified in rejecting their prayer on the ground that the order that has not been appealed.

(3.) THE learned DR reiterated the departmental view.