Customs, Excise and Gold Tribunal - Delhi
Pooja Castings Pvt. Ltd. vs Commissioner Of C. Ex. on 28 October, 2002
Equivalent citations: 2004(163)ELT356(TRI-DEL)
ORDER P.S. Bajaj, Member (J)
1. This appeal has been preferred against the Order-in-Original dated 16-4-2002 passed by the Commissioner of Central Excise, as the adjudicating authority vide which he has re-determined the ACP of the induction furnace of the appellants.
2. The facts are not much in dispute. The ACP of the induction furnace of the appellants was finally determined as 9600 MTs vide order dated 25-9-98 in terms of Rule 3(1) of the Induction Furnace Annual Capacity Determination Rules, 1997 (hereinafter referred to as 'Rules'). Thereafter, the Commissioner re- determined the ACP on the ground that the appellants had earlier suppressed the actual production capacity of their unit in collusion with the manufacturers of the furnace and passed the impugned order.
3. The learned Counsel has contended that the Commissioner had no power to review his own order dated 25-9-98 vide which he finalised the ACP of the unit of the appellants. The impugned order passed by him is illegal. In support of his contention he has placed reliance on the judgment of the Tribunal rendered in Tarun Castings Pvt. Ltd. and Ors. v. CCE, Jaipur, [2002 (142) E.L.T. 400 (T) = 2002 (49) RLT 167].
4. On the other hand, the learned JDR has reiterated the impugned order of the Commissioner and contended that the Commissioner had power to reopen the proceedings as the appellants suppressed the true facts from him.
5. We a have heard both the sides.
6. We find that the annual capacity of the induction furnace of the appellants was finally determined after taking into consideration all the relevant facts vide order dated 25-9-98. The Commissioner, in our view, had no power to recall or review his own order which had become final. In this view, we are fortified by the ratio of the law laid down by the Tribunal in the above referred case cited by the Counsel wherein it has been observed in similar circumstances, that the Commissioner has no power to review his order finally determining the capacity of the furnace and to revise the already determined capacity. That being so, the impugned order passed by the Commissioner cannot be sustained and deserves to be set aside.
7. Consequently, the impugned order of the Commissioner is set aside. The appeal of the appellants is allowed with consequential relief if any permissible under the law.