M/S. Unirose Textile Processors Vs. Commissioner of Cen. Excise, - Court Judgment

Excerpt:
1. on hearing both the sides on the stay application, we find it proper to take up the appeal itself for disposal by granting waiver of predeposit of rs.3,21,750/- confirmed as duty and equal amount penalty imposed.2. the appellants were operating under the hot air stenter independent textile processors annual capacity determination rules, 1998 issued under notification no.42/98-ce(nt). explanation (1) there to reads as under:- "for the purposes of this notification, a float drying machine or any other equipment of a length 3.05 metres installed in or attached to a stenter for aiding the process of heat setting or drying of the fabrics shall be deemed to be one chamber of a stenter and any faction of such length shall be computed on a pro-rata basis." 3. in the present case, the determination was done by counting the vail length of galleries in computing the capacity of the stenter. this is apparent from asstt. commissioner's letter f.no.vgn(30)87/ia/98 dated 17.6.99. a number of judgements have been given by the tribunal to the effect that in computing the capacity of the stenter, galleries are not includible. the larger bench of the tribunal in the order reproduced in 2001(127)elt 679 (tri.lb) in the case of sangam processors bhilwara ltd. has settled the issue finally. the commissioner, however, relied upon the tribunal judgement in the case of c.m. paints (p) ltd. vs.cce, new delhi [2000(120)elt 829(tri) in which such galleries were held to be "equipments" referred to under this explanation.4. we find that this judgement has specifically been over-ruled by the larger bench judgement. the conclusions arrived at by the commissioner based upon that judgement therefore, do not survive. the appeal is allowed with consequential relief, if any.

Judgment:
1. On hearing both the sides on the stay application, we find it proper to take up the appeal itself for disposal by granting waiver of predeposit of Rs.3,21,750/- confirmed as duty and equal amount penalty imposed.

2. The appellants were operating under the Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules, 1998 issued under Notification No.42/98-CE(NT). Explanation (1) there to reads as under:- "For the purposes of this notification, a float drying machine or any other equipment of a length 3.05 metres installed in or attached to a stenter for aiding the process of heat setting or drying of the fabrics shall be deemed to be one chamber of a stenter and any faction of such length shall be computed on a pro-rata basis." 3. In the present case, the determination was done by counting the vail length of galleries in computing the capacity of the stenter. This is apparent from Asstt. Commissioner's letter F.No.VGN(30)87/IA/98 dated 17.6.99. A number of judgements have been given by the Tribunal to the effect that in computing the capacity of the stenter, galleries are not includible. The Larger Bench of the Tribunal in the order reproduced in 2001(127)ELT 679 (Tri.LB) in the case of Sangam Processors Bhilwara Ltd. has settled the issue finally. The Commissioner, however, relied upon the Tribunal judgement in the case of C.M. Paints (P) Ltd. vs.

CCE, New Delhi [2000(120)ELT 829(Tri) in which such galleries were held to be "equipments" referred to under this Explanation.

4. We find that this judgement has specifically been over-ruled by the Larger Bench judgement. The conclusions arrived at by the Commissioner based upon that judgement therefore, do not survive. The appeal is allowed with consequential relief, if any.