Central Excise Appeal No. 215 of 2010 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Central Excise Appeal No. 215 of 2010 Date of decision: 16.2.2011 Commissioner of Central Excise, Commissionerate, Chandigarh-II ...Appellant Versus M/s Nachiketa Strips & Tubes Ltd. ...Respondent CORAM: HON'BLE MR.JUSTICE ADARSH KUMAR GOEL HON'BLE MR.JUSTICE AJAY KUMAR MITTAL Present: Mr. Gurpreet Singh, Senior Standing Counsel for the appellant. **** ADARSH KUMAR GOEL, J. 1. This appeal has been preferred by the revenue under Section 35G of the Central Excise Act, 1944 against order dated 11.3.2010 passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi claiming following substantial question of law:- “i) Whether Rule 5 of the Hot-Re-rolling Mills Annual Capacity Determination Rules, 1997 would apply to a case where annual capacity of production has been re- determined in terms of Rule 4(2) on account of change in parameters even though re-determined annual capacity is less than the actual production for the financial year Central Excise Appeal No. 215 of 2010 -2- **** 1996-97? While relying upon High Court's earlier order in CEC No.82 of 2001 in the case of Commissioner, Central Excise, Chandigarh Versus M/s Sawan Mal Shibhu Mal Steel Rolling Mills and others wherein identical case the department has filed appeal in High Court against Tribunal order-2001(127) ELT 46 (Tribunal- L.B.). So, it is explicit that matter is sub-judice?” 2. Learned counsel for the revenue fairly states that this matter is covered against the revenue by earlier judgments of this Court in GCR No.3 of 2005 (M/s Ganesh Steel Industries Vs. CCE, Chandigarh) decided on 29.3.2010 and Vikas Pipe Versus Commissioner of C.Ex., Chandigarh-II 2003(158) E.L.T. 680 (P&H). 3. Accordingly, the appeal is dismissed. (Adarsh Kumar Goel) Judge February 16, 2010 (Ajay Kumar Mittal) Pka Judge