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2015 (6) TMI 1021 - ANDHRA PRADESH HIGH COURT

2015 (6) TMI 1021 - ANDHRA PRADESH HIGH COURT - TMI - Classification - Whether the furnace of the appellant is 'pusher type' or 'batch type' for determination of ACP (annual production capacity) for levying monthly liability - Report of the NISST was given to the assessee in advance. Assessee has not lead any rebuttal evidence in the form of any Chartered Engineer's Certificate - Primary authority has not only taken the report of the NISST, but also examined the annual production based on the de .....

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inding based on report of the technical committee and the same has been concurred by the appellate Tribunal and on re-appreciation of the entire material on record, we do not find any legal infirmity or irregularity to interfere with the same. - Decided against the appellant - CENTRAL EXCISE APPEAL NO. 4 OF 2005 - Dated:- 24-6-2015 - G. CHANDRAIAH AND CHALLA KODANDA RAM, JJ. For The Respondent : J. Satya Ram, SC JUDGMENT G. Chandraiah, J. Heard the learned counsel for the appellant and Standing .....

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annum and imposed duty liability at ₹ 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 ₹ 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 t .....

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', filed revised declaration along with Chartered Engineer's Certificate for redetermination of duty liability. Based on the report of the Range Superintendent dated 19-5-1998, the Commissioner, by order dated 27-10-1998, rejected the claim of the assessee and ordered to treat the furnace of the assessee as 'pusher type' and duty liability as determined in order dated 16-9-1997 was confirmed. Aggrieved by the same, the assessee filed appeal before the Customs, Excise and Gold (Co .....

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the furnace is heating the same, set aside the Order-in-Original No. 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 .....

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he assessee and eventually, based on the certificate of NISST dated 8-11- 1999, the Commissioner concluded that the furnace of the assessee is 'pusher type' and rejected by the claim of the assessee by Order (Original) No. C. Ex. 06/2000 dated 10-2-2000. Challenging the same, the assessee filed appeal on the file of Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench at Bengaluru. By the impugned order dated 23-8-2004, the appeal was dismissed. Aggrieved by the same, th .....

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ace 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 appellant's factory and hence the furnace of the appellant has to be treated as batch type only and accordingly the unit's ACP has to be 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 furnac .....

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er examined as to what is the type of the mill that is installed in the factory and if the mill is slow speed mill, then the furnace cannot be held to be having pusher type furnace as the same cannot be installed for a low speed mill. He stated that the mill of the assessee is low speed mill and this factor has not been taken into consideration by the NISST team. He submitted that the authorities without considering these aspects found that the assessee is having furnace with pusher type mechani .....

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e appeal to consider the following questions of law : 1. Whether the order dated 23-8-2004 passed by the Hon'ble CESTAT upholding respondent order bearing No. CS.06/2000, dated 10-2-2000 determining the duty liability of the appellant under Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997, is proper and correct? 2. Whether in the facts and circumstances of the case the finding of the Hon'ble CESTAT that the furnace installed in the appellant's factory is pusher ty .....

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ntral 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 into the furnace. 2. The observation Nos. 3, 4 and 5 clearly indicate that there is movement of the material inside the furnace while the material is getting heated for rolling from back end .....

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r type' and rejected the claim of the assessee. 8. Further from the material on record, it could be seen that the primary authority has not only taken the report of the NISST, but also examined the annual production based on the declarations filed by the assessee itself and the claim of the assessee with regard to the nature of mill being run by it. The relevant discussions of the lower authority, which is apposite to meet the contentions of the learned counsel for the appellant, are extract .....

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erial 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 .....

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at the small sized units have low furnace capacity which are box/batch type. But it is a general statement and nowhere it is mentioned that Sri R.P. Bhatia has physically inspected the mill of the assessee to declare their furnace is of batch type. And also the enclosure to Sri R.P. Bhatia's letter is irrelevant in the instant case since we are not entering into any debate also where by installing such pusher mechanism the production output of furnace could be doubled as envisaged in the for .....

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