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TMI Blog2015 (6) TMI 1021X X X X Extracts X X X X X X X X Extracts X X X X ..... f production (ACP), describing its furnace as of 'pusher type' and accordingly, based on verification, the Commissioner, by proceedings dated 30-8-1997, fixed the ACP at 1592 mts. per annum and imposed duty liability at Rs. 19,900/- per month. Again based on a revised declaration by the assessee dated 10-9-1997, the Commissioner determined the ACP as 3145 MT per annum and liability was imposed at Rs. 78,625/- per month. The case of the assessee is that their furnace was having a screw pusher mechanism by which material is charged and there is no contrived movement of the material by way of conveyor belt or chain in the furnace of the assessee's factory and hence the furnace of the assessee has to be treated only as 'batch ty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CEX-29/98, dated 27-10-1998 passed by the Commissioner and remitted the matter back for de novo consideration after giving opportunity to the assessee. The Commissioner was given liberty to cause re-verification/re-inspection of the furnace of the assessee by any technical authority to enable him to apply the aforementioned two tests in the matter and was directed to make available the result of the technical authority to the assessee before considering the matter on de novo basis. After remand, the Commissioner required the National Institute of Secondary Steel Technology (NISST) based in Mandi Gobindgarh, Punjab, to cause verification of the furnace of the assessee. Accordingly, a team of officers of NISST visited the furnace of the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determined for imposing monthly duty liability. In other words, he contended that in order to treat a furnace as pusher type, there shall be a mechanism installed inside the furnace for the purpose of automatic operations and whereas in the present case, there is no mechanism installed inside the furnace for the purpose of automatic operation and the movement of the material while the same is heated inside the furnace. He also alternatively contended that the finding that the furnace is of 'pusher type' is not sufficient to determine the annual production capacity of a mill under Hot Re-rolling Mills Annual Capacity Determination Rules, 1997 and it has to be further examined as to what is the type of the mill that is installed in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve, the only controversy is whether the furnace of the appellant is 'pusher type' or 'batch type' for determination of ACP (annual production capacity) for levying monthly liability. For this, the authority below had relied on the certificate dated 8-11-1999 issued by NISST. The said certificate was issued by the NISST, after due verification of the furnace of the assessee in its presence and also in the presence of Central Excise Range Officer and also the Manager of the NISST. The conclusions in the said certificate, which are based on technical observations, are extracted as under for better appreciation : 1. The observation No. 12 clearly indicates that there is a pusher mechanism by which the material is charged/fed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mined during 1997-98 and 1998-99 shows that actual production always exceeded the production as determined under the rule; 30. Assessees states that there is no mechanical contrivance to move the material like conveyor belt or chain and no continuity of the material as well as the movement of hot material inside the furnace and no automatic mechanism to take out the material from the furnace and also states that their furnace is not continuous furnace where an uninterrupted cycle in which the charged material is added constantly. But the assessee does not dispute the observations points Nos. 3, 4 and 5 made by the NISST in their technical report which clearly indicate that there is movement of material inside the furnace while the materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of NISST have appended their signatures showing the transparency of inspection and arrived to the conclusion point with respect to the CEGAT's observations and declared the furnace is of pusher type" 9. In view of the above extracted findings, based on certificate of NISST and the material on record, the contention of the learned counsel for the assessee that the mill is low speed mill and the authorities treating it as high speed mill, fixed higher annual production capacity and demanded higher duty, cannot be countenanced and the judgments cited in this regard are not applicable to the facts of the case. 10. In our considered opinion, the questions of law framed for consideration form part of questions of fact, on which the primar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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