Custom, Excise & Service Tax Tribunal
Yes vs Represented By : Shri D.K. Trivedi, Adv on 30 June, 2009
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, Ahmedabad Appeal No. : E/212 of 2009 Arising out of : OIA No. 126/2008(Ahd-II)CE/ID/Commr (A)/ Ahd dated 19.11.2008. Passed by : Commr. (Appeals), C.Ex. Ahmedabad For approval and signature : Honble Mrs. Archana Wadhwa, Member (Judicial) Honble Mr. B.S.V. Murthy, Member (Technical) 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes Appellant (s) : M/s. Viramgam Rolling Mills Represented by : Shri D.K. Trivedi, Adv. Respondent (s) : Commissioner, C. Excise Ahmedabad
Represented by : Shri S.K. Mall, SDR CORAM :
Honble Mrs. Archana Wadhwa, Member (Judicial) Honble Mr. B.S.V. Murthy, Member (Technical) Date of Hearing : 30.6.2009 Date of Decision : ___ 2009 ORDER No. _____________ /WZB/AHD/2009 Per : Mrs. Archana Wadhwa, The appellant is engaged in the manufacture of MS Round, CTD Bars, Flats, squares etc. falling under Chapter 72 of Central Excise Tariff Act, 1985. Demand of duty stands confirmed against the appellant on the ground that duty liability does not stand discharged by them in accordance with the ACP fixed by the Commissioner. The period of demand is from September 1997 to 31.3.2002.
2. Appellants main grievance is that no valid and legal order fixing the APC was passed by Commissioner Central Excise and what was communicated to them, was a letter by the Assistant Commissioner indicating that Commissioner has fixed the APC. He submits that in the absence of any valid order by the Commissioner, such letter intimating determination of production capacity cannot be made the basis for confirmation of demand against the appellant. For the above proposition he relied upon the Tribunal decision in the case of Bhuwalka Steel Industries vs. CCE Chennai [2005 (191).ELT.693 (Tri.- Chennai)] holding that such communication by the Assistant Commissioner was not in accordance with law and in the absence of any appealable order by the Commissioner determining APC, demand cannot be raised against the assessee. To the similar effect are the other decisions in the case of Paragon Steels Pvt. Ltd. [2005 (08)LCX0324] as also in the case of Mitra Steels & Alloys Pvt. Ltd. [2005(08) LCX0343].
3. Inasmuch as, admittedly there is no order of Commissioner fixing an APC and only communication received by the appellant from the office of Assistant Commissioner, we set aside the impugned order confirming the demand and remand the matter to Original Adjudicating Authority with directions to first fix the APC in accordance with the law and to adjudge the appellants duty liability accordingly. We are not expressing any opinion on the other issues like closure of factory etc. and the appellant is at liberty to raise the same or any other issue before the authorities, in de-novo proceedings. Appeal is disposed off in above manner.
(Pronounced in the Court __________)
(B.S.V. Murthy) (Archana Wadhwa)
Member (Technical) Member (Judicial)
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