Mahesh Textile Processors Vs. Commissioner of Central Excise,

1. in the impugned order, the commissioner has confirmed the demand for duty issued to the appellant, a processor of textile fabrics on the ground that in determining the capacity of the stender under the hot air stender independent textile processors annual capacity determination rules, 1998, the length of the galleries is to be taken into account.2. the question as to whether the length of such galleries should form part of the capacity of the chambers in the hot air stender was referred to the larger bench of the tribunal as a result of conflicting decisions on this issue. the larger bench in its decision in sangam processors bilwara ltd vs. cce 2001 (42) rlt 429 has held that such galleries are not equipment for aiding the process of heat setting or drying of fabric referred to in the explanation 1 below rule 3 of the rules. it has confirmed the view of the tribunal in rm gupta textile p.ltd vs. cce 2000 (40) rlt 234 that such galleries are not to be taken into account while calculating the capacity of the stender.3. accordingly we take up the appeal itself, after waiving deposit, allow it and set aside the impugned order.