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2016 (3) TMI 776 - CESTAT ALLAHABAD

2016 (3) TMI 776 - CESTAT ALLAHABAD - 2016 (344) E.L.T. 269 (Tri. - All.) - Determination of capacity of the appellant unit at 6.4 MT - Held that:- 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 Commissioner is in error taking the capacity of the same on the premises that as the furnaces was available in the factory premises, the same has to be considered for determining annual capacity. According to the rules o .....

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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 Narasimhan, Adv For the Respondent : Shri Ajay Kumar (Joint Commissioner) AR ORDER Per Anil Choud .....

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the following directions - "We have considered the submissions of both the sides. It has been observed by the Commissioner in the impugned Order that the Appellants had claimed abatement for the first time in their reply dated 28.11.2000. The learned Advocate for the Appellants has submitted that they have claimed abatement of duty from time to time and it is not correct to say that the abatement of duty on account of their factory remaining closed was claimed for the first time in their re .....

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mination 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 ₹ 10,6 .....

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e 6/4. It is further pointed out by learned Counsel that in spite of admitting the fact that the furnace having capacity 3.0 MT was lying sealed and not in working condition, as the same was lying uninstalled as taken notice of by learned Commissioner in para-16 of the impugned order, but have erred in concluding that as the furnace was available in the factory of production the same has to be included for determining the annual capacity, whether the furnace is working or not. Accordingly the cl .....

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