M/S. Palm Print Textiles (India) Vs. Cce, Meerut - Court Judgment

Excerpt:
1. vide the impugned order passed by the commissioner of central excise, meerut has fixed the annual capacity of production of the appellant, as a consequence of which the superintendent has confirmed the demand against the appellant. the prayer in the stay petition is for setting aside the recovery of that demand, confirmed by the superintendent. however, we find that as the commissioner had only fixed annual capacity of production of the appellant, the stay petition is not maintainable in terms of provisions of section 35 f. accordingly the same is dismissed.2. as the issue involved in the appeal is pending very long, we take up the appeal itself with the consent of both the sides duly represented by ms.nandini ramachandran, learned advocate and shri m.p. singh, learned jdr.3. the impugned order has been assailed by the appellant on two grounds. firstly, before passing the same no opportunity was given to them to putforth their defence and secondly, on the ground that the commissioner has taken the galleries into account while computing the production capacity of their furnace/ stenter. learned advocate submits that as per the larger bench decision of this tribunal in the case of sangam processors bhilwara ltd. vs. cce jaipur reported in 2001 (42) rlt 429 (cegat-lb) , galleries are not to be taken into account while computing the production capacity. as such she made a prayer for remanding the matter to the original adjudicating authority. the annual capacity of production has been changed by the commissioner from the declaration made by the appellant without giving them an opportunity to explain the various facts before him. as such we find that there has been violation of principles of natural justice. accordingly, we set aside the impugned order & remand the matter to the commissioner for denovo adjudication after giving a chance to defend their case. while adjudicating the matter in remand proceedings, the commissioner will take into consideration larger bench decision of the tribunal in the case of sangam processors referred (supra). the appeal is, thus, allowed by way of remand.

Judgment:
1. Vide the impugned order passed by the Commissioner of Central Excise, Meerut has fixed the Annual Capacity of production of the appellant, as a consequence of which the Superintendent has confirmed the demand against the appellant. The prayer in the Stay Petition is for setting aside the recovery of that demand, confirmed by the Superintendent. However, we find that as the Commissioner had only fixed Annual Capacity of Production of the appellant, the stay petition is not maintainable in terms of Provisions of Section 35 F. Accordingly the same is dismissed.

2. As the issue involved in the appeal is pending very long, we take up the appeal itself with the consent of both the sides duly represented by Ms.Nandini Ramachandran, learned Advocate and Shri M.P. Singh, learned JDR.3. The impugned order has been assailed by the appellant on two grounds. Firstly, before passing the same no opportunity was given to them to putforth their defence and secondly, on the ground that the Commissioner has taken the Galleries into account while computing the production capacity of their furnace/ stenter. Learned Advocate submits that as per the Larger Bench Decision of this Tribunal in the case of Sangam Processors Bhilwara Ltd. Vs. CCE Jaipur reported in 2001 (42) RLT 429 (CEGAT-LB) , Galleries are not to be taken into account while computing the production capacity. As such she made a prayer for remanding the matter to the original adjudicating authority. The Annual Capacity of Production has been changed by the Commissioner from the declaration made by the appellant without giving them an opportunity to explain the various facts before him. As such we find that there has been violation of principles of natural justice. Accordingly, we set aside the impugned order & remand the matter to the Commissioner for denovo adjudication after giving a chance to defend their case. While adjudicating the matter in remand proceedings, the Commissioner will take into consideration Larger Bench decision of the Tribunal in the case of Sangam Processors referred (supra). The appeal is, thus, allowed by way of remand.