TMI Blog2016 (3) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... nt the annual capacity of production is determined at 6.4 MT and we re-determine the same at 3.4 MT for the period 1998-99. Accordingly the appellant will be liable to pay the duty, if any, unpaid on the capacity as is determined by this Tribunal. We also set aside the amount of penalty determined and fixed vide order dated 19.4.2006 determined by the Assistant Commissioner in terms of the impugned order. As we have decided the appeal on merits, we do not decide the points of law arising pursuant to amendment vide Finance Act, 2001. - Decided in favour of assessee - Appeal No. E/1415/2006-EX(DB) - Final Order No. A/70072/2016 - Dated:- 17-11-2015 - Anil Choudhary, Member (J) And CJ Mathew, Member (T) For the Appellant : Shri B L Nar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner for considering the abatement claims said to be on record and also for considering their plea of re-determination of their annual capacity of production for the financial year 1998-99 after affording a reasonable opportunity of hearing to the Appellants and in accordance with law. The Appeal is thus allowed by way of remand. 3. Pursuant to remand the appellant moved before the learned Commissioner stating that the annual capacity of production was wrongly determined provisionally at 6.40 MT taking the two furnaces together of 3.0 MT and 3.4 MT determining the monthly duty levy at ₹ 10,66,667/- per month. It is the case of the appellant that the furnace of capacity 3.0 MT was lying sealed with effect from 19/9/97, vide punchna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nancial year. Further the learned DR for the revenue relies on the ruling of Hon'ble Supreme Court in the case of CCE Vs. Venus Casting (P) Ltd. reported in 2000 (117) ELT 273 (S.C.) wherein the Hon'ble Supreme Court held that once an assessee have availed the procedure under Rule 96ZO(3) of Central Excise Rules, 1944, at their option to cannot switch over during the pendency of the financial year for payment of tax on the basis of actual production. 6. Having heard the rival contentions, we are satisfied that learned Commissioner has erred in determining the capacity of the appellant unit at 6.4 MT. In view of the admitted fact that the furnace of capacity 3.0 MT was lying out of working condition and/or uninstalled, the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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