JUDGMENT
Jyoti Balasundaram, Member(J)
1. The Commissioner of Central Excise has determined the rate of excise duty payable by the applicant who are covered under the Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules, 2000 as under:-
a. For the period December, 1999 to February, 200 @ Rs. 1.5 lakhs per chamber per month.
b. For the month of March, 2000 @ Rs. 2 Lakhs per chamber per month.
2. It is the contention of the applicant that for the first period the length of the gallery has been included while computing the average value of production per chamber per month and it has bee held by the Tribunal by its larger bench decision in the case of Sangam Processors Bhilwara vs. CCE, Jaipur 2001 (127) ELT 679 that gallery length is not required to be included in the length of the chamber for the purpose of determination of duty payable under Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules, 2000. Regarding the determination for the period March, 2000 he submits that the length of the chamber has been wrongly taken and in this connection he refers to the Chartered Engineer’s certificate showing that all the chambers are having uniform length of 300 cms. He submits that the measurements were taken by the department without associating the applicant with the verification of the measurement. In these circumstances he prays for stay of operation of the impugned order of determination of rate of duty.
3. Learned Dr Shri Sarkar reiterates the findings of adjudicating authority, however, stating that the larger bench decision is applicable for the period where the Commissioner has included the length of the gallery.
4. In view of the decision of the larger bench cited (supra) we hold that the length of gallery has to be excluded from the measurement of the chambers of Hot Air Stenter. Regarding the period March, 2000 we direct that the verification of the measurement take place in the presence of the applicants and then duty to be determined accordingly. For this purpose we sent the matter back to the jurisdiction Commissioner after setting aside the impugned order. The Commissioner shall pass fresh orders in accordance with law.
5. The appeal is disposed off in the above terms after allowing the stay application.