UNITED METAL INDUSTRIES Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THIS application filed by the appellants prays for condonation of the delay of 2376 days involved in the filing of Appeal No. E/1389/2004.

(2.) THE appeal is against an order dated 26.3.1998 passed by the Commissioner of Central Excise, Chennai -I finalising the Annual Capacity of Production (ACP) of the appellants' re -rolling mill. The Commissioner had determined their ACP in terms of Rule 5 of the Hot Re -Rolling Steel Mills Annual Capacity Determination Rules, 1997 (ACD Rules, for short). The validity of the said Rule was under challenge before the Hon'ble High Court of Madras in a batch of Writ petitions including Writ Petition No. 14672/97 filed by the Madras Steel Re -rollers Association. It was during the pendency of these Writ Petitions that the Commissioner passed the impugned order dated 26.3.1998, wherein he had added a rider reading thus: "The above order is without prejudice and subject to the outcome of the Writ petitions pending before the High Court of Madras". The Writ petitions were dismissed by the High Court as per judgment dated 5.3.2003, where the constitutional validity of Rule 5 ibid was upheld.

(3.) THE arguments of the Counsel are, by and large, founded on the expression "without prejudice" used in the impugned order of the Commissioner. Ld. advocate has sought to explain this expression on the strength of the Hon'ble Supreme Court's decision in Superintendent of Central Excise v. Pratap Rai, 1978 (2) ELT J613 (SC). He has also relied on Black's Law Dictionary to explain the above expression. He has also pointed out that, in a similar case of M/s Kanishk Steel Industries, the Hon'ble Madras High Court condoned a delay of 1550 days in the filing of an appeal with this Tribunal by the said party against an ACP order.