2018 (3) TMI 94

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....riginal. Since the issue involved in both the appeals is identical, hey are disposed of by this common order. For the sake of convenience, the facts of appeal No.E/1772/2010 are taken. 2. Briefly the facts of the present case are that the appellants are manufacturers of steel ingots falling under chapter 7206.90 of CETA, 1985 and are paying duty on the basis of Annual Capacity of production (ACP) under Section 3(A) of the Central Excise Act, 1944 read with Induction Furnace Annual Capacity Determination Rules, 1997. The Commissioner of Central Excise determined annual capacity for the year 1998-99 on 15/06/1998 as 9600 MTs and duty liability of Rs. 72 lakhs on provisional basis. The Commissioner further determined annual capacity for the....

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....Appeals) who rejected the appeals and upheld the Order-in-Original dt. 030/11/2009. Hence the present appeals. 3. Heard both the parties and perused records. 4. The learned counsel for the appellant submitted that the impugned orders are not sustainable in law as the same has been passed without considering the facts and the law properly. He further submitted that the Commissioner(Appeals) has misdirected himself by referring to Punjab & Haryana High Court judgment as in the appellant's own case for the same period, there was a Tribunal judgment in their favour holding that the proceedings of demand cannot be confirmed in the present case and the said judgment of the Tribunal has attained finality as the order was not challenged b....

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....on of the Tribunal dt. 03/10/2006 which became final as far as appellants are concerned. Further I find that both the authorities in their order has not considered the decision of the Tribunal in the appellant's own case and have confirmed the demand relying upon the judgment of the Hon'ble High Court of Punjab and Haryana in the case of Shree Bhagvati Steel Rolling Mills Vs. CE, Chandigarh [2007(207) ELT 58 (P&H)]. Further I find that once the judgment of the Tribunal has become final, then in that case, the Tribunal cannot confirm the demand on the basis of the judgment of the Punjab & Haryana High Court as has been done in the present case. The Bombay High Court in the case of RICO Gems corporation (supra) has held as under:- ....