TMI Blog2012 (7) TMI 571X X X X Extracts X X X X X X X X Extracts X X X X ..... at the relevant time not only opted for payment of the duty on the basis of their two furnaces and further, both were found in operation then such finding being pure finding of fact - appeal is found to be devoid of any merit - against assessee. - CENTRAL EXCISE APPEAL CASE NO 02 of 2004 - - - Dated:- 20-6-2012 - Mr Justice Abhay Manohar Sapre, Mr Justice G Minhajuddin, JJ. Dr N K Shukla Senior Advocate with Mr B D Guru Counsel for the appellant Mr Manish Sharma Counsel for the respondent Judgement ORDER APPEAL UNDER SECTION 35 G OF THE CENTRAL EXICSE ACT, 1944 The following order of the Court was passed by Abhay Manohar Sapre, J. Heard. (2) This is an appeal filed by the assessee under Section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant opted for discharge of duty liability on this basis for the two furnaces. The impugned order has held that that for the full period (1.9.97 to 31.03.2000), when the appellant functioned under compounded levy scheme, they were liable to pay duty of Rs.10 lakhs every month in view of the two furnaces of 3 MT each installed in the appellant's premises. The appellant had been disputing the capacity determination on the ground that even though they had two furnaces/crucible installed in their unit, at any given time, only one unit was functional and the other was idle. The appellant has submitted that, in order to run both the furnaces concurrently, a unit requires separate power connection for each furnace from the transformer. It is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capacity has to be determined excluding the "idle" (spare or standby) crucible. 4. Learned SDR has pointed out that the submission of the appellant has no basis inasmuch as the fact of installation of two furnaces/crucibles is not disputed. Further, the appellant's submission is not that one crucible was idle, but that both crucibles worked alternatively. Learned SDR has also pointed out that the reliance placed on para 6 of the Board's Circular was not correct and subsequent paras 11 and 12 made clear that a unit opting for payment of duty at Rs. 5 lakhs for furnace of 3 MT under sub-rule(3) of Rule 96ZO will not be eligible for any deduction under sub-section (3) and sub-section (4) of Section 3A of Central Excise Act. Learned SDR ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and sale of a commodity known as "M.S. Ingots". This commodity is manufactured by appellant with the use of "Induction Furnaces". It is an excisable commodity under the provisions of the Central Excise Act. . The appellant (assessee) is, however, given option to pay excise duty on this commodity at compounded rates, which is based on the annual capacity of their production. The production is required to be determined in terms of Induction Furnaces Annual Capacity Determination Rules 1997. (7) The appellant has installed two induction furnaces in their factory each having 3 MT capacities for manufacture of this commodity. In terms of Rule 96ZO (3), the appellant has a right to exercise the option to pay an amount of Rs. 5 Lakh every mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against this order; the appellant has felt aggrieved and filed this appeal. (10) Having heard learned counsel for the appellant (assessee) and on perusal of the record of the case, we are of the considered opinion, that the appeal does not involve any question of law much less substantial question of law and hence, we find no ground to admit this appeal. (11) At the outset, we may observe and indeed are of the considered opinion that the question as to whether two furnaces installed by the appellant were functioning or out of two only one was functioning at the relevant time was essentially a question of fact and did not involve any question of law much less substantial question of law. Secondly, when the Commissioner of Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mode only and are not permitted to change the mode as prescribed under Section 3-A (3) and (4) ibid. This authority was rightly relied upon by the Tribunal while deciding the appeal in this case and the same has full application to the facts of this case too. (14) Learned Counsel for the appellant (assessee) essentially addressed the Court on the factual matrix of the case and contended that one furnace was not operating. As mentioned supra, we cannot entertain this factual submission, as it is not within our jurisdiction to examine such question of fact. We, therefore, do not deal with this issue at length and reject the same being devoid any merit. (15) In the light of foregoing discussion, we find no merit in this appeal as it d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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