TMI Blog2002 (2) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Central Excise Act, 1944. In terms of the said Section and the Rule made thereunder, the appellants vide their letter dated 26-9-97 addressed to the Superintendent of Central Excise provided the parameters/capacity/type/ size etc. of their induction furnace. Based upon the information given by the appellants, their Annual Capacity of Production (hereinafter referred to as ACP) was determined by the Commissioner as 20,800 MT, in terms of provisions of sub-rule (4) of Rule (3) of the Induction Furnace Annual Capacity Determination Rules, 1997. The said determination was on provisional basis. Thereafter, the same was represented against by the appellants and the matter travelled up to CEGAT and was remanded for re-determination purposes. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove reasoning of the adjudicating authority is erroneous inasmuch as there is no reference to the past production under the provisions of Section 3A(4). Shri Santhanam also disputes the findings of the adjudicating authority which are to the effect that if the plea of the assessee is accepted, the purpose and objective of formulating the scheme for compounded levy on paying duty on ACP would stand fully defeated. The Commissioner has observed that had it been so, then there was no need of formulating a scheme making rules for annual capacity determination and for fixing ACP, if the assessee have to be given liberty to pay duty on so-called actual production. He has further observed that it is being noticed that all the assessees in the Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .), which clarifies that the duty liability can be discharged in terms of provisions of Section 3A(4). As such, he submits that the matter should be remanded with directions to the adjudicating authority to redetermine their duty liability under Section 3A(4). 6. It is on record that the appellants never opted for payment of duty in terms of the provisions of Rule 96ZO(3), which requires the assessee having furnace capacity of 3 MTs. to pay duty on lump-sum basis of Rs. 5.00 lakhs per month. They have admittedly opted for payment of duty in terms of the provisions of Rule 96ZO(1) which require the assessee engaged in the manufacture of steel ingots to debit the amount calculated @ Rs. 700.00 per MT at the time of clearance of ingots from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired to pay total amount calculated @ Rs. 750.00 per MT on the annual capacity of production of his factory as determined under the Induction Furnace Annual Capacity Determination Rules, 1997. Section 3A(4) of Central Excise Act, 1944 is to the effect that where an assessee claims that the actual production of notified goods in his factory is lower than the production determined under sub-section (2), the Commissioner of Central Excise shall, after giving an opportunity to the assessee to produce evidence in support of his claim, determine the actual production and determine the amount of duty payable by the assessee with reference to such actual production at the rate specified in sub-section (3). Sub-section (5) of Section 3A is to the e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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