JUDGMENT
P.G. Chacko, Member (J)
1. This appeal filed by the assessee is against a demand of duty of Rs. 24,606.
2. The appellants, during the material period, were working under the Compounded Levy Scheme under Section 3A of the Central Excise Act, under that Scheme, they had to discharge duty liability on their products [Hot Re-rolled Non-Alloy Steel Products] on the basis of the Annual Capacity of Production (ACP, for short) determined by the jurisdiction Commissioner of Central Excise. The jurisdictional Commissioner had determined ACP of the appellants and intimated the same to them in a letter dated 4.12.1998. The ACP so determined was 984.229 MT effective from 2.6.98, the date on which the appellant had commenced production. This ACP was based on the declaration filed by the party under the relevant rule as also the inspection report of the technical expert engaged by the party themselves. The Commissioner’s order of determination of ACP was challenged by the party in Appeal No. E/597/2004, which was delayed by 1883 days. The party’s application for condonation of the said delay was dismissed on merits and consequently the appeal also got dismissed. In the result, the Commissioner’s ACP order stood final and binding on the party. The present appeal is arising in this backdrop.
3. Heard both sides. Ld. Counsel for the appellants submits that the order of dismissal of Appeal No. E/597/04 having been on the ground of delay and not on merits of the case, it is open to the Tribunal now to direct the Commissioner to re-determine ACP in accordance with law and the principles of natural justice. It is submitted that the ACP was determined without considering the revised declaration filed by the appellants claiming that their furnace was of batch-type. Ld. DR opposes the counsel’s plea and submits that the present appeal which is against a demand of duty which is consequential to ACP determined finally by the Commissioner, can only be dismissed.
4. After considering the submissions, we have to accept the submission made by the DR. The Commissioner’s ACP order has become final and binding on the appellants. It is not in dispute that the demand of duty now under challenge is consequential to the ACP determined by the Commissioner. When the ACP is final and binding on the assessee, the demand is also likewise. The challenge against the demand is therefore not sustainable. The impugned order is upheld and this appeal is dismissed.