2023 (10) TMI 52

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..... The facts of the case are that the appellant was engaged in manufacture of Non-Alloy Hot Re-rolled Iron & Steel products and after introduction of capacity based production under section 3A, the appellant's monthly duty liability was determined by the Commissioner of Central Excise, Kolkata-II vide his letter dated 28.08.1998 for the period from September 1997 onwards. Thereafter, the Joint Commissioner vide his letter dated 10.08.1999 and 21.09.1999 ordered that percentage wise apportionment of Non-alloy and Alloy Steel is not permissible and therefore the appellants have to pay Rs.1,24,252/- in place of earlier order of Commissioner of Central Excise, Kolkata-II dated 28.08.1998. From the letter of Joint Commissioner, it will be seen th....

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....he earlier determination and superseded the same by determining the annual capacity of the assessee for the material period in the light of the Board's letter dated 13.11.1998. However, the issue agitated by the assessee was not considered by the appellate authority. Aggrieved by the order passed by the appellate authority the assessee preferred appeal before the tribunal. The Tribunal non-suited the assessee solely on the ground that the assessee did not challenge the order passed by the Commissioner re-determining the annual production capacity. On perusal of the grounds of appeal filed before the Tribunal by the assessee we find that specific contention raised by the assessee was that the earlier order passed by the Commissioner attained....

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.... of 2002 and by order dated 18.2.2003 the learned Tribunal had allowed the appeal accepting the stand taken by the assessee that they had discharged the duty burden based on the determination of the annual production capacity by the Commissioner and the said order having not been challenged before the higher forum, unilaterally the annual capacity cannot be re-fixed. The Tribunal in the said decision also noted the other decision of the Tribunal on the similar point. Thus, the Tribunal did not go into this aspect though the same was specifically canvassed by the assessee in the appeal before the learned Tribunal. The question thus would be whether the department can be directed to take a different stand when they have not preferred any appe....