Custom, Excise & Service Tax Tribunal
Ram Steel Rolling & Forging Mills vs Commissioner Of Central Excise, ... on 19 August, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPEAL No. E/1020/05-Mum (Arising out of Order-in-Appeal No. AT/M-III/23/2005 dated 25.1.2005 passed by Commissioner of Central Excise (Appeals), Mumbai-II) For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) and Honble Mr. C.J. Mathew, 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?
====================================================== Ram Steel Rolling & Forging Mills Appellant Vs. Commissioner of Central Excise, Mumbai-III Respondent Appearance: None for appellant Shri N.N. Prabhudesai, Superintendent (AR), for respondent CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical) Date of Hearing: 9.8.2016 Date of Decision: 19.8.2016 ORDER NO Per: M.V. Ravindran
This appeal is directed against order-in-appeal No. AT/M-III/23/2005 dated 25.1.2005.
2. None appeared for the appellant despite notice. We find from the records that this matter has been coming for disposal for quite some time and there is no representation. Accordingly, since the appeal is of 2005, we take up the same for disposal, even in the absence of any representation from the appellant.
3. Heard the learned departmental representative. He submits that the first appellate authority has passed a reasoned order inasmuch, the demand in this case is regarding the duty liability based upon determination of annual production capacity. He would submit that the appellant has not contested the determination of annual capacity of production by the Commissioner.
4. On perusal of the records, we find that the jurisdictional Commissioner, after obtaining opinion of technical experts, by an order dated 17.1.2000, fixed the annual production capacity. The said order dated 17.1.2000 seems to have been accepted by the appellant as there is nothing on record to indicate that the appellant had contested the order of fixing the annual production capacity. In the absence of any such contest or challenge, the order of fixing the annual production capacity needs to be followed by the appellant. The issue involved in this appeal is the demands of the duty consequent to such fixing of annual production capacity. As already held hereinabove that there is nothing on record to show that the appellant had contested the fixation of annual production capacity, the consequent demands raised in this appeal are correct and needs to be upheld.
5. As regards the penalty imposed on the appellant, we find that the said penalty is imposed under the provisions of Rule 96ZP of the erstwhile Central Excise Rules read with Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997. The said Rules have been struck down as ultra vires by the Honble Apex Court in the case of Bhagwati Steel Rolling Mills 2015 (326) ELT 209 (SC). In view of this, the penalty imposed by the adjudicating authority and upheld by the first appellate authority needs to be set aside and we do so.
6. The appeal is disposed of as indicated herein above.
(Pronounced in Court on 19.8.2016) (C.J. Mathew) Member (Technical) (M.V. Ravindran) Member (Judicial) tvu 1 3 E/1020/05