M/S. Sunil Industries Ltd vs Commissioner Of Central Excise, Mumbai ...

(Arising out Order-in-Appeal No. SB(153) 153/TH-I/2011 dated 29.04.2011 passed by the Commissioner of Central Excise (Appeals), Mumbai)

For approval and signature: Honble Shri P.K. Jain, Member (Technical) Honble Shri Ramesh Nair, Member (Judicial)

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 Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy Yes of the Order?

4. Whether Order is to be circulated to the Departmental Yes authorities?

M/s. Sunil Industries Ltd. Appellant

Vs.

Commissioner of Central Excise, Mumbai I Respondent

Appearance:

Shri Mayur Shroff, Advocate for the appellant Shri Ashutosh Nath, AC (AR) for the respondent

CORAM:

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

Date of hearing : 05.02.2015 Date of decision : 05.02.2015

O R D E R No:..

Per: P.K. Jain:

The brief facts of the case are that the appellant is a processor of fabric. A compounded levy scheme was introduced in respect of fabrics with effect from 16.12.1998. The Commissioner provisionally fixed the annual capacity of production vide provisional order no. 58/98 dated 29.12.1998. In the said order, the Commissioner determined the capacity as 17 chambers. Vide final order no. 2/99 dated 14.06.1999, the capacity was determined as 18.30. The capacity was increased taking into account length of gallery and cooling zone. The appellant vide their letter dated 09.08.1999 represented to the Commissioner against the said decision. However, no reply to the said representation was made. In the meantime, demand notices were issued for recovery of differential duty which has been confirmed by the original authority as also first appellate authority. Aggrieved by the said decision, appellant is before us.

2. Heard both sides.

3. This Tribunal in the case of Samarth Knitters P. Ltd. 2013-TIOL-1862-CESTAT-MUM dated 31.07.2013 has dealt with exactly similar issue and observed as under:-

5. We find that this issue is now settled by the decision of Hon'ble Bombay High Court in the case of Mahalaxmi Dyeing & Ptg. Pvt. Ltd. Versus Union of India reported in 2011 (27) E.L.T. 194 (Bom.) Hon'ble Bombay High Court held that the issue whether the length of galleries are to be taken into consideration while fixing the capacity of stenter is now decided by the Hon'ble Supreme Court. The Hon'ble High Court held that length of galleries are not to be taken into consideration. In such a situation, the assessee can challenge the demand raised on these basis though he has not challenged the order fixing annual capacity by the Commissioner of Central Excise.

4. In view of the above decision and also keeping in view the fact that the appellant has represented to the Commissioner after the final order and there has been no response from the Commissioner for the said representation, the impugned order is set aside and the appeal is allowed.

(Operative part pronounced in Court)

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

//SR

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