1998 (4) TMI 226

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....[Order per : P.C. Jain, Member (T)] - The applicants/appellants herein have come in appeal against the Commissioners' order dated 23-9-1997 determining provisionally the annual capacity of production on the basis of which they are required to pay duty in terms of sub-section (2) of Section 3A and rules made thereunder. The learned Advocate has submitted that the appellants have made all efforts ....

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....sioner under sub-section (2) is an order of determination of provisional capacity and therefore, no appeal is maintainable against that order. It is for the Commissioner to exercise his powers under sub-section (4) of Section 3A and only when such order is passed the order shall become appealable. He, therefore, prays that the stay petition be dismissed and the appeal itself be dismissed as non-ma....

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.... to redetermine it after looking into the evidence adduced by the manufacturer. We find that the annual capacity determined by the Commissioner under sub-section (2) is vehemently disputed by the appellants and on the strength of certain evidence; it is therefore, the duty of the Commissioner to pass an order under sub-section (4). We observe that the Commissioner has not done so despite the persu....