Judgment Jawahar Lal Gupta, J. 1. The Commissioner of Central Excise has filed this petition under Section 35H(1) of the Central Excise Act, 1944 . It is claimed that the following two questions of law arise out of the order dated April 6, 2000 [2001 (133) E.L.T. 800 (T)] passed by the Customs, Excise & Gold (Control) Appellate Tribunal. (i Whether even in the event of change in any of the parameters of the Hot re-rolling Mills as prescribed in Sub- rule (2) of Rule 4 of the HRSMACD Rules the annual capacity will still not be determined in terms of Formulae as prescribed in the Sub-rule (3) of Rule 3 of the HRSMACD Rules? And further (ii Whether when the annual capacity so re-determined under Sub-rule (3) of Rule 3 of the HRSMACD Rules is still less than actual production of 1996-97, would no provision of Rule 5 of the HRSMACD Rules come into operation? 2. A few facts may be noticed. 3. Respondent No. 1 is engaged in the manufacture of hot rolled products. For the year 1996-97 the annual capacity of production of the Unit was fixed as 11961.135 Metric Tons. This was done vide order dated January 5, 1998. The respondent applied to the Commissioner for grant of permission to change the parameters in terms of the provisions contained in Rule 4(2) of the Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997 . The permission was granted. On the basis of the changed parameters, the annual capacity came to 7328.435 Metric Tons, as per the formulae provided under Rule 3(3) of the Rules ( ibid) . However, the Commissioner vide order dated January 27, 2000 re-fixed the annual capacity of production as 11961.135 Metric Tons. A copy of the order is at Annexure P1. 4. Aggrieved by the order, the respondent filed an appeal before the Tribunal. On examination of the matter, the Tribunal found that in a case of re-determination of the annual production capacity on the basis of changed parameters, the provisions of Rule 5 were wrongly invoked by the Commissioner. Thus, the appeal was accepted. Hence this petition for reference. 5. We have heard Mr. Rajesh Gumber, learned Counsel for the petitioner. On examination of the matter, the Tribunal found that in a case of re-determination of the annual production capacity on the basis of changed parameters, the provisions of Rule 5 were wrongly invoked by the Commissioner. Thus, the appeal was accepted. Hence this petition for reference. 5. We have heard Mr. Rajesh Gumber, learned Counsel for the petitioner. He contends that in view of the provisions of Rule 5, the annual capacity, as fixed for the year 1996-97, shall be deemed to be the actual production for a subsequent year. Can it be so ? 6. It is the admitted position that the capacity for the year 1996-97 was fixed on the basis of the parameters adopted by the respondent at the relevant time. Subsequently, the parameters were altered. In view of the change in parameters, it is the admitted position that the capacity was considerably reduced. In fact, it has not been disputed that the annual production had come down from 11961.135 Metric Tons to 7328.435 Metric Tons. This having happened, the Revenue could not have claimed Excise duty for the capacity which was not in existence. The provisions of Rule 5 cannot be invoked in a case where after the determination of the capacity for the year 1996-97, the Unit makes a change in the capacity and the production actually comes down. If such a course were permitted, the result would be grossly unfair. 7. There is another aspect of the matter. The Tribunal had rejected the claim of the Revenue in another case also. Reference to this case has been made in the order of the Tribunal, viz., Awadh Alloys (P) Ltd. v. CCE, Meerut , reported in 1999 (112) E.L.T. 719. 8. When this case was posted before the Bench, the matter was adjourned to enable the counsel for the Revenue to find out if the Department had challenged the order in the case of Awadh Alloys (supra). Despite opportunity, the information has not been supplied to the Court. Mr. Gumber has pointed out that he had written a letter to the Commissioner. He has received no reply. Why is the information being withheld? Is the Revenue selectively filing cases in the Court? Why was the information not supplied to the counsel? There is no answer. We can only lament the indifference of the petitioner. 9. Mr. Gumber has pointed out that he had written a letter to the Commissioner. He has received no reply. Why is the information being withheld? Is the Revenue selectively filing cases in the Court? Why was the information not supplied to the counsel? There is no answer. We can only lament the indifference of the petitioner. 9. As for the present case, we do not find that any question of law arises out of the order of the Tribunal. 10. Resultantly, the petition is dismissed in limine .