9911796707
TMI Blog2001 (12) TMI 703X X X X Extracts X X X X X X X X Extracts X X X X ..... is of annual capacity of their induction furnace. Accordingly, under the Induction Furnace Annual Capacity Determination Rules, 1997 the appellants vide their letter dated 22-8-97, declared the capacity of their furnace as 2500 cc to 3000 cc. This declaration was supported by a certificate dated 8-8-97 issued by M/s. A.B.B. Ltd., Vadodra - the manufacturers of the furnace. M/s. A.B.B. Ltd., issued another certificate dt. 10-9-97 to the same effect which was also annexed by the assessee. Accordingly, the Commissioner vide his order dated 29-9-97 determined the capacity of the furnace as 3.0 M.T. and the annual capacity was determined as 9600 M.Ts. However, the officers of the Central Excise Commissionerate, Jaipur visited the factory premise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. A.B.B. Ltd. In this statement, he has specifically deposed that as per M/s. A.B.B. Ltd. the capacity of the crucible is 3.39 M.T., though in his bills he has mentioned it as 3.5 M.T. But this is in a general way. Further, a statement was also recorded from Shri M.L. Gupta, Director of M/s. R.M. Brothers on 6-10-98, in which, he has specifically stated that the capacity of the furnace supplied by M/s. A.B.B. Ltd. and installed in their factory is 3,390 Kgs and they could melt up to 3200 Kgs of material in their furnace. In his statement, he also deposed that the certificate issued by M/s. A.B.B. Ltd. appear to him totally fake. 3. Accordingly, the proceedings were initiated against the appellants and they were issued a show cause no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of the Commissioner on the ground that since he had already fixed their annual capacity as per the specifications of the furnace furnished by them, it was not open to him to redetermine the same and on this ground it is contended that the order of the Commissioner is not maintainable. In support of his contention, the ld. Counsel for the appellants has relied on the following decisions of the Hon'ble Supreme Court : (i) Shri Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur and Others - 1987 (32) E.L.T. 8 (S.C.) and (ii) Union of India v. K.M. Shankarappa - 2001 (127) E.L.T. 8 (S.C.). 6. It is contended that in both the above decisions, it is held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. Counsel for the appellants. 7. Now coming to the facts of the case, admittedly the declaration filed by the appellants in their letter dated 22-8-97 declaring the furnace capacity as 2500 Kgs to 3000 Kgs is supported by the certificates of the manufacturers, M/s. A.B.B. Ltd. in which, also the same capacity of the furnace is stated. In the show cause notice and in the Order-in-Original, these certificates of the manufacturer are dismissed as fake and procured by manipulation. However, there is no evidence placed on record in support of the findings that such certificates are fake or manipulated ones. It was open to the Commissioner to have made an enquiry and verify from M/s. A.B.B. Ltd. whether the certificates were fake or not. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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