M/S. Rajlaxmi Industries Limited vs Commissioner Of Central Excise, ...

[Arising out of Order-in- Appeal No. PD/88/Th-II/2004 dated 25/6/2004 passed by the Commissioner(Appeals) Central Excise Mumbai-IV]

For approval and signature:

Honble Mr. P.K. Jain, Member(Technical) Honble Mr Ramesh Nair, Member(Judicial)

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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?

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M/s. Rajlaxmi Industries Limited :

Appellants

VS

Commissioner of Central Excise, Thane-II :

Respondent

Appearance

Shri. R.V. Shetty, Advocate for the Appellant Shri. Ashutosh Nath Asst. Commissioner(A.R.) for the Respondent

CORAM:

Honble Mr. P.K. Jain, Member (Technical) Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 17/3/2015 Date of decision 17/3/2015

ORDER NO.

Per : P.K. Jain

Brief facts of the case are that the appellant is a processor of Textile fabrics. Compound levy scheme was introduced in 1998 where duty was to be computed based upon rail length/number of Hot Air Stenter A dispute arose between the appellant and Revenue whether the length of galleries should be included while determining the length of stenter. In the final order dated 17/6/1999 passed by the Commissioner the said length was ordered to be included. Appellant represented against the said order vide their letter dated 09/7/1999. Appellant paid duty without including the length of galleries. Consequent to the said order of the Commissioner, the demand notice was issued to the appellant for demanding differential duty. The original authority dropped the demand in view of the Honble Supreme Court decision reported in [2002(146) ELT 254(SC)] wherein Honble Supreme Court took the view that Gallery having no rail, fan or radiator attached to it cannot come within the purview of any other equipment as contemplated by Explanantion-I to the HASITPACD, Rules, 1998. The Revenue filed appeal against the said order of the original authority before the Commissioner(Appeals) on the ground that order dated 17/7/99 of Commissioner, Central Excise has not been challenged by the appellant before the higher forum and hence become final. The Commissioner(Appeals) allowed the appeal of the Revenue. Aggrieved by the said order the appellant is before us.

2. Heard both sides.

3. We find that the matter has already been settled by Honble Bombay High Court in the case of Om Textiles Pvt. Ltd. VS. Commr. of C. Ex., Belapur, Navi Mumbai[2014(310) E.L.T. 236(Bom.,). Keeping in view the facts that the appellant has represented vide letter dated 9/7/99 to the Commissioner against his order dated 17/6/99 determining the production capacity and hence duty liability for which no reply was sent as also Honble Bombay High Court decision in case of Om Textiles Pvt. Ltd(Supra), the appeal is allowed. (Operative part pronounced in court)

Ramesh Nair Member (Judicial) P.K. Jain Member (Technical)

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