9911796707
TMI Blog2012 (5) TMI 751X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under Section 3A of the Act. The said scheme levies duty based on the capacity of production. 3. Section 3A empowers the Central Government to levy excise duty on manufacturer of certain notified goods on the basis of annual capacity of production to be determined by the Commissioner of Central Excise in terms of the Rules to be framed by the Central Government. The said Section 3A was inserted and omitted from time to time. It was inserted in the Act for second time by Act No. 26 of 1997 with effect from 14th May, 1997. 4. The production capacity of furnace of the appellants herein was 4 M.T. initially. Subsequently, the appellants got reduced the annual production capacity of the furnace as provided under the relevant Rules and applied to the Commissioner for re-determination of the reduced capacity of the furnace. The Commissioner got the furnace measured and determined the capacity of furnace at 3.59 M.T. as against 3 M.T. claimed by the appellants. The order of the Commissioner was subject matter of challenge and it ultimately reached to the Tribunal in the first round of litigation. The Tribunal by its earlier order dated 19th July, 2000 accepted the contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to ascertain the capacity of furnace in presence of certificate filed by the appellants certifying the reduction in production capacity of furnace by any other manner. Reliance was placed on the Apex Court judgment in the case of Commissioner of Central Excise, Chandigarh v. Doaba Steel Rolling Mills, 2011 (269) E.L.T. 298 to support his contention that in absence of any Rule with regard to re-determination of capacity of furnace enhanced or reduced subsequent to installation of furnace, the changed capacity will be determined as per Rule 3(a) of the said Rules. 7. In reply, Sri S.P. Kesharwani, learned standing counsel appeared for the department and submits that the certificate filed by the appellants was not the certificate by the manufacturer of the said furnace and as such, the said certificate cannot be relied upon. It has no evidentiary value. On actual measurement, the production capacity of the furnace was re-determined. No fault could be pointed out with regard to measurements done by the Excise Officials. There is no error in the order under appeal. It was further submitted that on earlier occasion, when the matter had reached to the Tribunal, no objection with r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the manufacturer's invoice or other document indicating the capacity of the furnace is available or, if not so possible, on the basis of any other material as may be relevant for this purpose. The Commissioner may, if he so desires, consult any technical authority for this purpose; (3) …………………………………………………………………………… ……………………………………………………………………………… (4) ……………………………………………………………………………. ………………………………………………………&helli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of such furnace shall be determined on the basis of such invoice or document. (ii) In absence of such invoice or document, the capacity shall be determined with comparable furnaces installed in any other factory in respect of which the manufacturer's invoice or other document indicating the capacity of the furnace is available. (iii) In absence of two aforesaid situations, it shall be determined on the basis of any other material as may be relevant for the purpose of determination of capacity and for this purpose; the Commissioner may consult any technical authority for this purpose. 13. Having noticed the principle relating to determination of capacity of furnace as mentioned in the aforesaid Rules, 1997, coming to the facts of the present case, the argument of the appellants' counsel that the reduced capacity should be determined on the basis of such invoice by invoking sub-rule (1) of Rule 3 needs consideration. The factual aspect of the case is that the appellants got reduced annual capacity of production of furnace already installed. In this connection, strong reliance has been placed upon a voucher issued by Industofur Engineers I.N.C. dated 11th February, 1999, r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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