ORDER
J.H. Joglekar, Member (T)
1. On hearing both sides, we find that the point of law is fully covered. We therefore take up the appeal for decision.
2. The appellant were operating under the Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules, 1998. The jurisdictional Commissioner had determined the duty payable by the appellants vide his order dated 27.10.1999. This order was in the nature of finalisation of the capacity of the stenters. In making this order, the Commissioner had taken into account the length of galleries and had ruled that they should be added towards determining the number of chambers. The assessees had however continued to make payment in terms of the declaration made by them without taking the length of the galleries into account. The Deputy Commissioner passed orders on 26.5.2000 directing recovery of differential duty and imposing penalty upon the appellants. The appellants then filed an appeal. The Commissioner (Appeals) directed them to make a pre deposit of the entire duty, and the entire penalty. He did not accede to their request for modification to permit payment of the involved sum in instalments also. Once more the assessee pleaded before the Commissioner (Appeals) that the issue of exclusion of gallery length for the purpose of computation was under consideration of the Government. The Commissioner however did not accede to this request. For failure to deposit the directed sums, he dismissed their appeal in terms of Section 35F of the Central Excise Act 1944. Hence the present appeal.
3. The direction that the length of the galleries is not be included in computing the number of chambers was given by various Benches of this Tribunal from time to time. The issue finally was placed before the Larger Bench and was decided by the Larger Bench in Sangam Processors Bhilwara Ltd vs CCE (2001 (127) ELT 649). We observe that even when the learned Commissioner passed this order, the West Zonal Bench of the Tribunal had made orders that the length of the galleries not to be included when computing the number of chambers. It does not seem that this issue was so placed before the Commissioner. However, in the light of this finding we find that the appeal succeeds and is allowed.
4. The stay application also stands disposed of.