TaxTMI 
TaxTMI 
2010 (9) TMI 859
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....pellant could be denied refund when the order dated 1st July, 1999 determining the capacity on the basis of goods which have been declared ultra vires to Section 3(a) of the Madras High Court ? The facts : 3. The appellant M/s. Mahalakshi Dyeing and Printing Works is engaged in the manufacture of processed textile fabrics, falling under Chapter Heading 52, 54 and 55 of the Schedule to the Central Excise Tariff Act, 1985. The processed textile fabrics have been specified under Notification No. 41/98 CE(NT) dated 10th December, 1998, as notified goods on which duty of excise is leviable and payable in accordance with the provisions of Section 3-A of the Central Excise Act, 1944. The Assessee has to accordingly discharge the excise duty liability from 16th December, 1998 on the notified goods in terms of Rule 96 ZQ of the Central Excise Rules, 1944 ("the Rules of 1944" for short) read with the Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules, 1998 ("the Rules of 1998). The said assessee had declared the details vide declaration dated 16th December, 1998 as required under Sub Rule (1) of Rule 3 of the Rules of 1998 read with Section 3-A of t....
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.... Hon'ble Supreme Court. It is, thus, urged that the Department had agreed that the re-determination would be subject to the decision of the Apex Court. Thus, it is submitted that the denial of the refund after the dismissal of the said appeal by the Apex Court, for want of challenge to the order dated 1st July, 1999 is palpably erroneous and misconceived. It is the case of the appellant that the annual capacity of production was determinable for the relevant financial year only. Consequently, the annual capacity determination order can be operative only for the financial year for which it pertained. The submission is that the exercise of determining annual capacity was not a one time excise but a periodic exercise to be conducted annually during each financial year. Thus, the order dated 1st July, 1999 passed in conjunction with the provisional order No. 2/98(F) dated 17th December, 1998 cannot be held to be operative for the financial year commencing from April, 1999. 9. Mr. Kantawala, learned Counsel appearing on behalf of the appellants submits that the Final Order No. 2/98 (F) 98-99 dated 1st July 1999 was not set aside by the higher forum cannot be a basis for rejectio....
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....otally settled by the Apex Court in appellants' favour. 11. Mr. Kantawala further contends that the impugned order of the Tribunal is also contrary to the ratio laid down by this Court in the case of M/s. Om Textiles as reported in 2006 (74) RLT 233 (Mumbai). It is submitted that this Court has categorically held that in the light of the judgment of the Apex Court in SBPL Ltd, the length of galleries in counting the number of chambers was rendered illegal, consequently, the Tribunal ought to have considered the applicability of the law laid down by the Apex Court in the case of SPBL Ltd. He also contends that in the present case the appellant had made various representations against the Order No. 2/98 (F) 98-99 dated 1st July, 1999 and were also specifically informed, vide letter dated 19th September 2001, that the issue was kept alive because of the proposed appeal to the Apex Court against the order of the Larger Bench of the Tribunal. It is submitted that in view of the judgment of this Court in case of Om Textiles (supra), the Department was under an obligation to re-fix the annual capacity of production on the basis of Apex Court judgment in case of Sangam Processors. ....
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....t and in addition, they also gave letters dated 8th September, 1999, 25th May, 2000 & 20th August, 2001 intimating that the duty on the galleries was paid by them under protest and in addition to that they also made the debits in the PLA mentioning clearly that these amounts were being paid towards galleries under protest. It was also submitted that the findings of the Deputy Commissioner that the respondents had not followed the procedure under Rule 233 was without any basis. According to Mr. Kantawala, the appellant had also made various other submissions vide the aforesaid rejoinder. The said submissions had not been dealt with in the impugned order. Thus, the impugned order deserves to be set aside as unsustainable. Per contra : 14. Mr. Pardeshi, learned Counsel for the respondent-Revenue tried to canvass the sole contention that the order of the Commissioner dated 1st July, 1999 passed by the Commissioner of Central Excise, Mumbai-VI under Rules of 1998 is a final order and not provisional one. 15. He, thus, submits that unless the final order of determination is set aside, it will hold the field until it is set aside by the competent Court or forum. In his ....
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....cise Rules. However, this order was not acted upon by the Revenue. Consequently, aggrieved thereby, appellant herein had filed Writ Petition No. 225 of 2005 seeking directions against Revenue in the matter of payment of refund. Aggrieved by the order granting refund, Revenue invoked appellate jurisdiction of the Tribunal. The Tribunal vide its impugned order dated 27th February, 2004 allowed appeal filed by the Revenue and set aside the order directing refund on the following two grounds : (a) That the Higher Judicial Forum did not set aside the capacity of the unit already determined under order dated 1st July, 1999 and; (b) that the refund was not filed under protest as prescribed under Section 233(b) by the respondents. Against the above order, this appeal was admitted to consider the questions extracted in the opening part of this judgment. 19. As already indicated hereinabove, the Apex Court, in the group of matters, the Commissioner of Central Excise v. S.P.B.L. Ltd. - 2002 (146) E.L.T. 254. held that the length of galleries having no fan or radiator attached to it shall not be taken into consideration while cou....