r ^. ^' ^r^jsoY IN THE HIGH COURT OF JUDICATURE AT BILASPUR (CHHATTISGARH) ^'5&. APPEAL No. _____^_(i_/2003 ^ APPELLANT / M/s Shalimar Ispat Udyog through its partner Rajendra Daga, 34, Iftdustrial Area, Urkura, Raipur VERSUS /RESPONDENTS .^^^^^ .^eyr ^^•^ r^... ^ 1. Commissioner Central Excise and Custom, Central Excise Building Dhamtari Road, Tikrapara Raipur (C.G.) 2. Custoins, Excise and Service Tax Appellate Tribunal, Through its Asstt. Registrar,West Block No;2, R.K.Puram, New Delhi. APPEAL UNDER SECTION 35G OF THE CENTRAL EXCISE ACT 1944 \^^ ^Against the order dated 26.08.03 in Stav order no.S/278/2003NBC/E/Stay /1051/03 NBCin A. no^7 129^72003 NBCoassed bvthe resoondent no.2, XI-HC-22 ^^f t<ii^i<n4, ^•at^Ko, fa^i^y '311^1 ^T f^tli<=b 3T1^T 5^+iich <yf^a 3Trif?r 'q^? WRCr[T^RT<^ •^ 2001 {&9. I^^T' ^TI^T'^TT^R TTf^T 16.10.2003: Shri Parag Kotecha Shri S.K.Beriwal Heard. Being aggrieved by Tribunal, in Case No. E/St< ^n'^rf^T^ TqTR^if "^ 1^1 ^^K ^ 3?rf^R ^IT^T le^rned counsel for the appeliant. learr|ed counsel for the respondents< the impugned interim stay order dated 26.8.2003 passed by Cus'j'pmes, Excise and Service Tax Appellate ^/1051/2003/NB-C in A.No. E/1299/2003- NB-C, the appellont has (ireferred this Misc. Appeal. By the said interim order the learned'Fribunal has held that prima facie the case of the q)pelkmt is not fit for total waiver of the duty. Appellant was also directed to deposit a ^ already deposited within |um of fts. 7 lakhsin addition to the amount ^ix weeks there from< Learned Tribunal further held 1+iat on depjositof the aboye-mentioned amount, the remaining amount of duty v^ould be waived for^hearing of the appeal. We have heard learr|ed counsel for the parties and perused -rfie record, Shri Parag Kotecha, (earned counsel for the appellont submitted that the case of the appeltmt is covered by the decision of 1+ie larger [^i^^ XI-HC-22 2- '^ocr ^i^i<nq, ^Ti1^t<o, [®i<ns^^< 3TT^T Mslch ^9 Nl^cf<l ^^jch——•—'————•—"—"^^ 200 'IN^?" ^TT^T'^1 f<^J<=h 311^1 5b^i<=t» <yf^a 377^T'^ITSsR Trf^T c^i<ii<n<i1'i TrR^f "^ fe^l iPat^K '^3T^FT3T?^T !\ Bench of the Tribunat and the duty. ribunal ought to have waived the total tHe In paragraph No.4 of Tribunal held that the dispute the unit of the oippellant and dispute de^rves to be ^ttled down by the brger Bench of Shibumal Steel Rolling Mills Vs.J wherein the guideiines had beer| 5 of the Ca^acity De-terminat on observed that Itie Commissjonerf Bench dedsion while passin9 order of the Jearned Tribunal had been reduction in liieir ACPj and on that account rule determinatjon rules was not the Commissioner was not matter in the light of ttie Bench, and since it has failed commissioner cannot be sustdried lorder dated 16.1.2002 the learned rtelates to the determination of ACP of t has be6n fairly conceded that this ti accordance wi'1+i 1+ie ratjo of law laid Tribunal in the matter of Sawanmal JCCE, Chandigarh-I-SOOl (127) ELT-46, laid down for the qpplicability of rule Rules- Learned Tribunal had ateo had not taken into account 1+iis larger order. It isalso reflected in the fhat according to the appellant, there jdue to chdnge in parameter of the mill ^ of the above I referred ccpacity 1. Learned Tribunal had held Ihat to examine this aspect of the ref&rred dedsion of the larger tt-o do so, the impugned order of the in law. Consequently, 1+ie order- of the att-hxcted. reqljired attove [^^^ XI-HC-22 '3'^^NKrs^ ^wi<o,fa<rti^y sn^r xi^? ...-^-. ffi ^raCTT^W^ w ^T^ 200 ^^sy' 371^1 ^T 1^;?T?T3?II^l 5»i^icfr ^fia ^l^? ^<ai^ ^fea ^t<lfa<itt *iW<^l ^^S ifat^K ^ 3tPaH 3iI^?T i\ the commissioner was set asid^ adjudicating authority for r^ dppellant in the light of the a^ Against this order of the Co^ and the matter was sent back to the ^-determination of the AC? of the |ove referred larger Bench decision of the Tribunalafter hearing the fl()pellant. TTie Commissioner afte^ hearing the parties reached the conclusjon that the capacity de|t-erminatjon order ond fixation of duty liabiljty will hold good for the >|ear 1998-99 and year 1999-2000 also. missioner/ the appellant preferred an appeal before the learned CE^AT and by the impugned order the Tribunal has held that since -Hi^re is no change in the parameters of the company, the dedsion of t^ie kirger Bench of -rfie Tribund is not appJiCTxble on the facts of 1+ie p^esent ca^. Having regard to the alj CE<&AT we do not find cxny sub^ Counsel for the appellant. relaxation to the appelbit and addition to the already remaining amount of duty has |ove orders of the Commissioner fluid |tance in the ar9uments,of the learned L^arned Tribunol hos already granted fsked for deposit of only Rs. 7 lakhs in deposit^d amount of fts. 25,51,331/- flmd the bejen waived for hearing of 1+ie appeal. [^^fet CA XI-HC-22 ^l^t^l [<Tii5b 3H^l st34iict» <-ti^a ^ t""^ "g'^^qpn^R^ ^TfiwKo/fa<rl(^y sniw 'q'ra? ^ WR^Il SbNlcti' "^ 200 fa^^ ^li^l '^[i^^l^ct Learned Counsel for the the substantid question of law| interim stay order passed by the| ^ppellant is not even able to make out in the matter to interfere with the learned TribunaL Consequently, we do not| order of the learned Tribunal dismissed. It is accordingly dismi^sed Sd/- Chief Justice I cbl4?<rl^t-t 'Wldt "^ 1^€tI^E$R ^3rf^i%lM atld find any point to interfere with the therefore the appeal is liable to be Sd/- L.C.BHADOO Judge n