TMI Blog2009 (7) TMI 319X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 of the said rule. Considering the same as rightly pointed out on behalf of the respondent, no fault can be found with the impugned order of Commissioner discarding the invoice relating to modified capacity to determine the original capacity of the furnace in terms of Rule 3 of the said rule. - E/4387/2004 - 512/2009-EX(PB), - Dated:- 3-7-2009 - Justice R.M.S. Khandeparkar, President and Shri M. Veeraiyan, Member (T) S/Shri Bipin Garg, Advocate with Atul Gupta, Co. Secy., for the Appellant. Shri P.K. Singh, DR, for the Respondent. [Order per: Justice R.M.S. Khandeparkar, President (Oral)]. - Heard learned Advocate for the appellant and learned DR for the respondent and perused the records placed before us. 2. This appeal arises from the order dated 31-5-2004 passed by the Commissioner of Central Excise, Kanpur. The impugned order was passed pursuant to the order of remand of this Tribunal on 15-7-2002 in Appeal No. E/1184/01-NB. 3. The appellants are engaged in production and clearance of M.S. Ingots of non-alloy steel and for the purpose of production of the excisable goods they use induction furnace. Based on the declaration made by the appellant and on veri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dues payable in terms of the provisions of Rule 96ZO of Central Excise Rules, 1944. besides the duty payable in terms of the APC fixation Order bearing No. 31/Commr./Tech/99, dated 24-3-99, for the period 2-2-99 to 31-3-99 and 1-4-99 to 31-3-2000, amounting to (i) Rs. 6.036 *5/3 * 100000 * 55/28 = Rs. 19,76,071.00 and (ii) Rs. 4.036 *5/3 * 100000 * 12 = Rs. 80,72,000.00 respectively under Rule 96ZO(3) of Central Excise Rules 1944" 4. Being dissatisfied with the said order, the appellant preferred an appeal before this Tribunal being Appeal No. E/1184/01-NB which came to be disposed of by order dated 15-7-2002. By the said order, the Tribunal remanded the matter with the following direction:- "7. In so far as reliance on the invoices/invoice of the manufacturer/ trader is concerned, we find that it was not the invoice of the manufacturer/trader but the certificate issued by the person who undertook modification. We note that under Rule 3(a) of the relevant rules, the Commissioner is required to examine the invoice issued by the manufacturer/trader about the capacity of the furnace. Since there is no mention as to whether such invoice was produced or examined before rejecting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Advocate appearing for the appellants submitted that the appellants had produced sufficient evidence to ascertain the exact capacity of the furnace from March, 1999 onwards, pursuant to the modification of the original furnace and there was no justification for the Commissioner to discard the same, more particularly taking into consideration the provisions of Rule 3 of the said rules. The directions by the Tribunal were to determine the capacity of the furnace bearing in mind the Rule 3 of the said Rules, hence, according to the learned Advocate, there was no difficulty for the Commissioner to determine the capacity of the furnace on the basis of the invoice in relation to the modified furnace submitted by the appellant to the authority. 7. Learned DR on the other hand submitted that bearing in mind the scope of the inquiry which was specified under the remand order by the Tribunal, in view of failure on the part of the appellants to produce the cogent evidence in relation to the original capacity of the furnace, no fault can be found with the impugned order. 8. As already seen above, the Tribunal under order dated 15-7-2002 had specifically directed the Commissioner to exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any technical authority for this purpose. 10. Considering the sub-rule (2) of Rule 3 of the said rules it was sought to be contended that in any event though the appellant had not produced the invoice of the furnace when it was originally installed, undisputedly, the appellant had produced the invoice for modification of the furnace and the same would satisfy the requirement of sub-rule (2) which uses the expression "any other material". Being so, according to the learned Advocate, the authority below was not justified in discarding the said document, nor the Tribunal's order prohibited the Commissioner from considering the same. 11. It is not in dispute that the appellant did produced invoice and certificate in relation to the modified furnace. What sub-rule (2) of Rule 3 speaks of, when it uses the expression "any other material", is that the document relating to the furnace at a time it was supplied or installed, and not at a time such furnace is modified. Any document in relation to the modification of the capacity of furnace cannot be a substitute for the document disclosing the capacity of the furnace when it was originally supplied or installed, prior to its modificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 15-7-2007 being fully conversant with the procedure which was required to be followed for determination of the capacity of the furnace had directed examination of certificate in relation to installation and had specifically referred to the Rule 3 of the said rules while directing the Commissioner about the invoice issued by the manufacturer/trader. The expression "trader" obviously referred to the persons dealing in the business of the supply of ready-made furnaces. As far as installation is concerned, it can be either by a trader or a manufacturer as well as by the purchaser that is by the person whom the furnace is supplied. However, specific reference to Rule 3 in the order of the Tribunal would indicate necessity of the invoice of the manufacturer of the furnace as the same was supplied to the appellant initially when it was installed for the first time and not the invoice on modification of such furnace. Being so, no fault can be found with the order of the Commissioner for having understood the order of the Tribunal in the manner he has required to understand. In the result we do not find any case made out for interference in the impugned order. Appeal therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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