Custom, Excise & Service Tax Tribunal
Silwester Textiles Pvt. Ltd vs Commissioner Of Central Excise, ... on 1 January, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPEAL No. E/3286/04-Mum (Arising out of Order-in-Appeal No. PD/87/Th-II/2004 dated 25.6.2004 passed by Commissioner of Central Excise (Appeals), Mumbai-IV) For approval and signature: Honble Mr. S.S. Kang, Vice President Honble Mr. P.K. Jain, Member (Technical) ======================================================
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== Silwester Textiles Pvt. Ltd. Appellant Vs. Commissioner of Central Excise, Thane-II Respondent Appearance: None for appellant Shri Ahibaran, Additional Commissioner (AR), for respondent CORAM: Honble Mr. S.S. Kang, Vice President Honble Mr. P.K. Jain, Member (Technical) Date of Hearing: 1.1.2014 Date of Decision: 1.1.2014 ORDER NO Per: S.S. Kang
Heard the learned AR. The appellants vide letter dated 31.12.2013 made a request to decide the appeal on merits.
2. The brief facts of the case are that the appellants are engaged in the processing of fabric. With effect from 16.2.1998, the processing of fabric was liable for duty on the capacity of production of the stenters. The appellants filed necessary declaration and the Commissioner of Central Excise, Mumbai, in exercise of powers under the Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules, 1998, fixed the capacity on provisional basis and the appellants started paying duty as per the provisional fixation. Thereafter, the Commissioner of Central Excise, after issuing a show cause notice, fixed the annual capacity vide final order No.13/99 dated 14.6.1999 after including the length of galleries. The appellants had not challenged the order passed by the Commissioner whereby the annual capacity is fixed finally. Thereafter, show cause notice was issued for demand of duty as per the annual capacity fixed by the Commissioner of Central Excise. The adjudicating authority dropped the proceedings. However, the Commissioner (Appeals), on appeal filed by the Revenue, set aside the adjudication order.
3. In the written submissions, the appellant relied upon the decision of the Honble Supreme Court in the case of CCE, Jaipur-II vs. Sangam Processers Bhilwara Ltd. reported in 2002 (146) ELT 254 (SC) to submit that the length of galleries is not to be taken into consideration while fixing the annual capacity of the stenters.
4. We find that the appellants had not challenged the order under which the Commissioner of Central Excise fixed the annual capacity of production of the processed textile fabric. Thereafter, show cause notice was issued demanding duty as per the order passed by the Commissioner of Central Excise fixing the annual capacity of production. These proceedings are under challenge.
5. The appellants had not challenged the order passed by the Commissioner of Central Excise fixing the annual capacity of production. The appellants are challenging the order passed by the Commissioner of Central Excise in the demand proceedings, which is not permissible. In view of this, we find no infirmity in the impugned order. The appeal is dismissed.
(Dictated in Court) (P.K. Jain) Member (Technical) (S.S. Kang) Vice President tvu 1 3