TMI Blog2010 (6) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 96ZP(3). The dispute relates to d factor. On 1-9-97, the appellant declared d factor as 245. The officers visited the factory premises on 21-8-99 and measured the d factor in the presence and with the help of officials of the company and found it to be 261 and as a result, a show cause notice was issued proposing differential duty of Rs. 14,29,136/- for the period 1-5-98 to 31-8-99 and proposing demand of Rs. 89,321/- for March, 2000 and also proposing imposition of penalty. The Commissioner, in pursuance of the show cause notice, adjudicated the dispute and held that the d factor is 258. He based his finding on the technical report dated 12-9-01 given by National Institute of Secondary Steel Technology and the report dated 14- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in 2003 (159) E.L.T. 605 wherein it has been held that the original determination carried out by the Commissioner requires no revision on such eventuality. He also submits that said decision of the Tribunal stands upheld by the Hon ble Punjab and Haryana High Court in the case of Malhotra Industrial Corporation vide their order dated 21-8-2008 reported in 2009 (237) E.L.T. 262. 6. Alternatively, he submits that in the event of any re-determination, the re-determination should be given effect to from 21-8-99, the date of visit by the officers or at the most, the same should be given effect from 9th July, 1999 if the statement of partner that the semi-skilled workers during the repair of the machinery have changed the factor d without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been clearly spelt out in the show cause notice and in the order-in-original and merely because the order wrongly mentions Section 11AC and Rule 173Q, no relief should be given to the appellants. 9. I have carefully considered the submissions from both sides and perused the records. The d factor initially declared by the appellants was 245. The reports of the experts relied upon by the appellants suggest that d factor could be affected due to wear and tear of bushes. While this could be so, the report also clearly indicates that the bushes require to be periodically replaced. It is common knowledge that the main machinery will get damaged if the bushes are not periodically replaced. Commissioner, in all fairness, accepted the opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, it cannot be said that the Commissioner was not justified in demanding duty from 16-7-98. It is clear from the reasoning adopted by the Commissioner that he has taken various claims including the change in dimensions of parameters due to wear and tear and technical opinions and held that the duty is demandable from 16-7-98 to 21-8-99 and March, 2000. It is to be noted that the demand confirmed is only Rs. 1,23,620/- as against the original demand of Rs. 14,28,136/- + Rs. 89,321/- 10. Therefore, there is no reason for interfering with the demand of duty as upheld by the Commissioner. Regarding interest, the duty based on annual production capacity requires to be paid by the specific dates. It has no relevance to the date of clearances o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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