Judgment:
1. The captioned five appeals were heard together as the issue is the same and are being disposed of by this common order.
2. The facts of the cases are that the appellants are engaged in the manufacture of Ingots. Central Excise Duty on Ingots became payable under Induction Furnace Annual Capacity Determination Rules, 1997 issued under Section 3A(2) of the Central Excise Act. The appellants declared parameters of their mills. The ld. Commissioner first determined the annual capacity of the furnaces provisionally and subsequently after verification of data, the final capacity of the furnaces was determined. SCNs were issued to the appellants asking them to explain as to why the Annual Capacity of the Induction Furnace should not be re-determined, and why Central Excise Duty on the re-determined capacity should not be collected and why penalty should not be imposed. Ld. commissioner re-determined the capacity of the furnaces. Being aggrieved by this re-determination of the capacity of the induction furnaces operated by the appellants, the appellants have filed these captioned appeals.
3. Arguing the case for the appellants Shri J.S. Agarwal, ld. Counsel submits that capacity of the induction furnaces was finally determined by the Commissioner and therefore, re-determination of the Annual Production Capacity of the Induction Furnaces amounted to review of the orders passed by the Commissioner himself. He submits that the Commissioner cannot review his own orders. In support of this contention, he cites and relied upon the decision of this Tribunal in the case of Vikas Steel v. CCE, Jamshedpur reported in [2001 (133) E.L.T. 578 (T) = 2001 (45) RLT 71]. The Tribunal in this case held : "We have considered the submissions made from both sides. The facts as narrated in the preceding paragraphs clearly show that at the time of fixation of annual production capacity in Feb., 98, the entire facts including the factum of actual higher production during the last year, 1996-97, were before the Commissioner. The Order fixing the annual production capacity was passed by him under the provisions of Section 3A of the Act which provides that the Commissioner shall fix the annual capacity of production in a hierarchial manner, as provided therein. The Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997 enacted under sub-section of Section 3A of the Act provided for determination of annual capacity of production, lays down the manner for doing the same. As such, these are the Rules which have to be followed by the Commissioner while fixing the annual capacity of a mill. In the present case, the Commissioner has fixed the annual capacity in terms of Rule 3 of the said Rules whereas the Revenue's case is that it is Rule 5 which had to be applied. The appellants have strongly contended that the Commissioner cannot review his Order as regards the fixation of annual capacity of production for which they rely upon the Tribunal's decision in the case of Jayraj Ispat Ltd. referred supra. By applying the said decision, we find that in the absence of any suppression on the part of the assessee, it was not open to the Commissioner to review his own Order retrospectively".
Ld. Counsel also referred to the judgment of the Larger Bench of this Tribunal in the case of Dinkar Khindria v. CC, New Delhi reported in - 2000 (118) E.L.T. 77. In this case the Tribunal held : "It is now well established that a quasi judicial authority can not review its own order unless the power of review is expressely conferred on it by the statute under which it deprives its jurisdiction".
4. Ld. Counsel also referred to the judgment of the Apex Court in the case of UOI v. K.M. Shankarappa reported in - 2001 (127) E.L.T. 8 in which the Apex Court held : "8. We are unable to accept the submission of the ld. Counsel. The Government has chosen to establish a quasi judicial body which has been given the powers, inter alia to decide the effect of the film on the public. Once a quasi judicial body like the Appellate Tribunal, consisting of a retired Judge of a High Court or a person qualified to be a Judge of a High Court and other experts in the field, gives its decision that decision would be final and binding so far as the Executive and the Government is concerned. To permit the Executive to review and/or revise that decision would amount to interference with the exercise of judicial functions by a quasi judicial Board. It would amount to subjecting the decision of a quasi judicial body to the scrutiny of the Executive. Under our Constitution the position is reverse. The Executive has to obey judicial orders. Thus, Section 6(1) is a travesty of the rule of law which is one of the basic structures of the Constitution. The Legislature may, in certain cases, overrule or nullify the judicial or executive decision by enacting an appropriate legislation.
However, without enacting an appropriate legislation, the Executive or the Legislature cannot set at naught a judicial order. The Executive cannot sit in an appeal or review or revise a judicial order. The Appellate Tribunal consists of experts and decides matter quasi judicially. A Secretary and/or Minister cannot sit in appeal or revision over those decisions. At the highest, the Government may appeal to the Tribunal itself for a review, if circumstances so warrant. But the Government would be bound by the ultimate decision of the Tribunal".
5. Ld. Counsel submits that the Commissioner in the instant cases had reviewed his own orders which were not permitted by the Central Excise Act or the Rules. He submits that hence the orders passed in review are nullity in law, he, therefore, prays that the impugned orders may be set aside and the appeals may be allowed.
6. Shri Mewa Singh, ld. DR submits that in view of the legal position set out in the judgments referred to by the Counsel for the appellants, he has nothing further to add.
7. We have heard the submissions of the ld. Counsel for the appellant.
We have also heard the ld. DR. In the instant case we note that the Induction Furnace Annual Capacity of Production was first determined provisionally and was determined finally after requisite verification.
We note that after final determination of the Annual Capacity of Production of Induction Furnaces in the instant cases, the Commissioner had become functus officio. We note that Section 35E of Central Excise Act, 44 provides : "The Board, may, of its own motion, call for and examine the records of any proceedings in which the Commissioner of Central Excise as an adjudicating authority has passed any decision or orders under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such Commissioner to apply to the Appellate Tribunal for determination of such points arising out of the decision or order as may be specified by the Board in its order".
8. Having regard to this legal position, we find that the Commissioner has not been empowered to review his own orders. In this view of the matter, the order passed in review is nullity in law.
9. We have perused the case law cited and relied upon by the Counsel for the appellants. We note that the case law elucidates the law set out in Section 35E of the Central Excise Act, 44. Having regard to the above discussion, we set aside the impugned order and allow the appeals.