9911796707
TMI Blog2002 (2) TMI 1087X X X X Extracts X X X X X X X X Extracts X X X X ..... Capacity of Production (ACP) fixed by the Commissioner of Central Excise. The appellants opted for discharging the duty liability under the provisions of Rule 96ZO(3) of the Central Excise Rules, 1944. The Commissioner of Central Excise, Jamshedpur vide his order dated 23-3-98 fixed the ACP of the party at 14,400 MT. Accordingly, they were required to pay Rs. 7.5 lakhs per month in two instalments towards full and final discharge of duty liability on the goods manufactured by them. Against the order dated 23-3-98 of the Commissioner, the party through their letter dated 30-3-98 represented before the Commissioner that they had only one furnace of 3 MT in operation and the other induction furnace of 1.5 MT had suffered a major break down on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of Rule 3 of the Induction Furnace Annual Capacity Determination Rules, 1997, the Commissioner vide his order dated 23-3-98 determined the ACP of the factory of the appellants as 14,400 MT after due consideration of representation and declaration of the assessee. Further it is observed that in view of the provisions contained in sub-section (2) of Section 3A, the quantity of 14,400 MT stood as annual production of the goods by the factory of the assessee. The assessee was required to pay duty on this quantity during the year. As per this determination, the assessee was required to pay Rs. 7.5 lakhs per month in two instalments for full and final discharge of his duty liability. The assessee, however, agitated that the ACP fixed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not arise. Accordingly, the Commissioner has held that the assessee is required to pay duty as per the ACP fixed in their case. 4. The present appeals are against the impugned order dated 8-12-99 of the Commissioner in which he has confirmed a demand of Rs. 75 lakhs on the appellants for short payment of duty from July, 1998 to January, 1999 in terms of proviso to Rule 96ZO(3). He has further imposed a penalty of equivalent amount on the appellants under the provisions of same rule. 5. We have heard Shri K.P. Choudhary, ld. Advocate for the appellants and Shri D.K. Bhowmik, ld. SDR for the respondents. We have considered these submissions made before us. It is observed that the Commissioner had fixed the ACP of the factory of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f non-production of notified goods exceeding seven days i.e. 5-9-97 afterwards as a part of the factory was closed. The appellants placed before the Commissioner following evidences none of which are examined by the Commissioner in his order :- (i) Vide their letter dated 27-8-1997 the appellant had informed the department that they have two induction furnaces one of 1.5. MT and other of 3.00 MT capacity, (ii) On 5-9-1997 vide their letter No. RHL/SMS/97-98, dated 5-9-1997 addressed to the Assistant Commissioner of Central Excise, Jamshedpur with a copy to the Superintendent, they informed regarding the major break down of their one furnace of 1.5 MT capacity from 4-9-1997, (iii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ratory, Jamshedpur (A Government of India undertaking) appointed by Commissioner of Central Excise, with a copy to the Superintendent, Central Excise, furnishing therewith prescribed proforma duly filled in respect of 3.00 MT and 1.5 MT furnaces, (ix) In this communication while in case of Crucible Capacity of 3.00 MT. furnace the details of raw materials have been indicated mild steel, sponge iron with CIMS mixed Scrap but in case of 1500 Kg., Crucible Capacity as against details of raw materials it has been indicated "furnace closed". This speaks in clear term that even on 10-3-1998 their 1.5 MT., furnace was still closed having suffered break down on 4-9-1997, (x) The jurisdictional Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was removed from the factory on 20-4-1998. A registered letter RHL/CEX/98-99, dated 20-4-1998 was addressed by them to the Commissioner, Central Excise, vide registration No. 1793 with a copy to the Assistant Commissioner, vide registration No. 1794 stating therein that the said furnace of 1.5 MT., capacity being closed from 5-9-1997, was removed from the site and requested to re-fix the furnace capacity for the new financial year. 6. The Commissioner in his impugned order has not considered much less he has recorded any findings on the above submissions of the appellants in respect of their request for re-fixation of the ACP on the basis of only one furnace of 3 MT capacity which alone was functioning during the material period. No ..... X X X X Extracts X X X X X X X X Extracts X X X X
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