Jay Mahakali Rolling Mill vs Union of India (UOI)

M.R. Calla, J.—The Petitioner seeks to challenge the order of the Customs, Excise and Gold (Control) Appellate Tribunal, West Regional Bench at Mumbai passed on 14-7-2001 and received on 26-7-2001 in Application E/S/474/2001-Mum. in Appeal E/475/2001-Mum.

Heard learned Counsel.

The Appeal came up before the CEGAT on the stay Application against the collection of Rs. 61,444/-. The Appeal itself was taken up for hearing and the same has been dismissed. The petitioner herein had filed an Appeal before the CEGAT stating that when the proposal to change was made with effect from 17-8-1999 by letter dated 9-74999 the Department ought to have accepted it. The case of the petitioner was that the duty could not be demanded as per the show cause notice. It is the admitted position that the said letter dated 9-7-1999 had not been received by Assistant Commissioner until October, 1999. The letter written by the assessee was received by the Assistant Commissioner''s office on 18-10-1999 and by Commissioner''s office on 22-10-1999. The determination by the Commissioner is with effect from 22-10-1999. The CEGAT has, therefore, rightly held that until such determination takes place in terms of Rule 4(2) of the Hot Re-Rolling Steel Mills Annual Capacity Determination Rules, 1997, the assessee has to pay the duty under the existing Agreement.

The learned Counsel for the petitioner has placed reliance on a decision of the CEGAT in case of 1999 (112) ELT 719 and yet another decision of the CEGAT in the case of Shree Balaji Re-Rolling v. Commissioner of Customs and C. Ex., Bhubaneshwar-II reported in 2001 (131) E.L.T. 153 (Trib. Kol). In the first case i.e. Awadh Alloys (P) Ltd. v. Commissioner of Central Excise, Meerut, (supra) the CEGAT had come to the conclusion on the basis of the exchange of correspondence that an intimation about the change of the partners was sent to the Department on 31-8-1998. The date of intimation, therefore, should be only after 31-8-1998 and it was found that the effective date had been indicated as 9-9-1998 and accordingly it was held that annual production capacity of 1968 mrs. was to be effective from 9-9-1998. In another case of Shree Balaji Re-Rolling v. Commissioner of Customs and C. Ex., Bhubaneshwar-II (supra), the CEGAT did not find anything on record to show as to how the value had been picked up as 164.5 mm. by the Commissioner and the production of capacity has been recalculated accordingly and for the reasons recorded in this order, the impugned order was set aside and the matter was remanded back to the Commissioner for fixing the annual capacity based upon verification report of the Central Excise Authorities and to make the same effective from the date of the actual change in the parameters carried out by the appellants in that case. It is, therefore, clear that these two cases were not applicable to the facts of the present case. The only case, which was cited before the CEGAT by the present petitioner was the case of Awadh Alloys (P) Ltd. v. Commissioner of Central Excise, Meerut, (supra) and we find that the CEGAT has rightly held that the same was not applicable to the facts of the present case and that action taken by the Commissioner was perfectly valid because the moment the request for change in the value of the parameters had been received by the Commissioner, immediate action had been taken by him. We do not find any error either of fact or of law in the order passed by CEGAT. There is no merit in this Special Civil Application. The same is hereby rejected.