Annual production capacity re-determination upheld where earlier fixation was not shown to have attained finality.

Annual production capacity for 1998-99 could be re-determined on changed parameters where the earlier fixation was only communicated by letter and was not shown to be a final adjudication order. The assessee had sought the change and paid duty under protest on the later basis, supporting the Commissioner's re-fixation under the capacity determination rules. The department's objection that the earlier fixation had attained finality, without more, was insufficient to defeat the re-determination, which was upheld.

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Issues: Whether the annual production capacity for 1998-99 could be re-determined on the basis of changed parameters despite the department's contention that the earlier fixation had attained finality and the assessee had not separately challenged it.

Analysis: The assessee had sought change of parameters and had paid duty under protest on the basis of the subsequently fixed capacity. The earlier fixation was communicated by letter and was not shown to be an adjudication order giving rise to finality in the manner contended by the department. The dispute also involved the proper basis for re-fixation of capacity under the capacity determination rules, and the Commissioner's approach was supported by the factual matrix and the protest against payment. In these circumstances, the department's sole objection that the earlier fixation had become final was insufficient to dislodge the Commissioner's re-determination.

Conclusion: The re-determination of annual production capacity for 1998-99 was upheld and the revenue's challenge failed.

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