1. Shri K.K. Anand, learned Advocate, submitted that M/s. Forbos Industries manufacture hot-rolled products of non-alloy steel which were chargeable to Central Excise duty under Section 3A of the Central Excise Act w.e.f. 1-9-97; that the Appellants had changed the parameters of their rolling mills after duly intimating the Department; that after changing the gear box, they had again informed the Department under letter dated 10-10-97 that they have undertaken the change and re-started the rolling mill w.e.f. 10-10-97 and requested for verification and redetermination of capacity; that the Department had verified the changes undertaken by them; that as they did not receive any order determining their annual capacity production, they wrote a letter on 11-11-1997 to the Department; that they were informed by the Superintendent (Tech.), under letter dated 13-2-98, that the annual capacity of their mill is fixed provisionally w.e.f. 13-12-97; that, thereafter, they wrote another letter to the Commissioner in which they requested that the revised capacity should be made effective from 10-10-97; that the Deputy Commissioner (Central Excise), Divn. I informed them under order dated 7-3-01, that the annual capacity of production fixed provisionally w.e.f. 13-12-97, be treated as final; that against the said order, they had filed an appeal before the Commissioner (Appeals); that the Commissioner (Appeals) has dismissed their appeal holding that the appeal is not maintainable as the Deputy Commissioner has merely communicated the order of the Commissioner, who happens to be the authority to fix the annual capacity and it cannot be regarded as the order of the Deputy Commissioner. The learned Advocate, further, submitted that the final capacity determination order has been passed by the Deputy Commissioner as there is no mention in the order dated 7-3-01. that the Deputy Commissioner has merely communicated the order of the Commissioner. He relied upon the decision in the case of C.C.E. v. M/s. M.P. Steel Corporation, 3. Shri H.C. Verma, learned D.R., countered the arguments by reiterating the findings as contained in the impugned Order.
4. We have considered the submissions of both the sides. Under Sec-lion 35 of the Central Excise Act, any person aggrieved by any decision or order passed by the Central Excise Officer, lower in rank than the Commissioner of Central Excise, may appeal to the Commissioner (Appeals). The appeal to the appellate Tribunal under Section 35B of the Central Excise Act lies against the decision or the order passed by the Commissioner of Central Excise and order passed by the Commissioner (Appeals). In the present matter, the Deputy Commissioner (Central Excise), Divn. 1, Indore has," under order dated 7-3-01, ordered that the annual capacity of production, which was fixed earlier provisionally w.e.f. 13-12-97, shall be treated as final. There is no indication in the said communication that the Deputy Commissioner was only communicating the order passed by the Commissioner. The plain reading of the communication reveals that this is an order passed by the Deputy Commissioner itself. As this is an order passed by the Deputy Commissioner, the appeal lies with the Commissioner (Appeals) as per the provisions of Section 35 of the Central Excise Act. In view of this, we hold that the appeal, filed by the Appellants was maintainable before the Commissioner (Appeals). Accordingly, we set aside the impugned order and remand the matter to the Commissioner (Appeals) with direction to decide the matter on merit after affording a reasonable opportunity of hearing to the appellants. The appeal is disposed of by way of remand.