TMI Blog2019 (2) TMI 842X X X X Extracts X X X X X X X X Extracts X X X X ..... scheme is unreasonably high and the Actual Production is far lower, Section 3A (4) provides for the assessee to file an application to the Commissioner for re-fixing the ACP. Such application was moved by the appellant through their letter dated 15/07/1998 against the capacities fixed by the Commissioner vide this order dated 28/4/1998. The present proceedings is against the order passed by Commissioner in the denovo proceedings. However, it is seen that he has re-fix the capacity as done in his initial order dated 28/04/1998. He has declined to consider the plea made by the appellant to re-fixe the capacity keeping in view of the actual production figures recorded in RG-1. After considering the various factors claimed to be impacti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1/03/1998. During the period 01/03/1997 to 31/03/2000, Compounded Levy Scheme was in vogue as per the Notifications issued under Section 3 A (as it existed them) of the Central Excise, Act, 1944. As per the terms of this Scheme, the Annual Capacity of Production was required to be determined by the Jurisdictional Commissioner in terms of the relevant rules notified for the said purpose. Rule 96ZP provided the basis for determination of ACP in respect of re-rolling mills and Rules 96ZO provided the basis for determination of ACP in respect of induction furnace units. The appellant, in their factory had an induction furnace for manufacture of Iron and Steel ingots and also had a re-rolled mill where the ingots were re-rolled to manufacture ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pass an order on the application dated 15/07/1998 and re-work the differential duty. 4. In compliance to the Tribunal s direction as above, the ACP was re-fixed by the Commissioner vide the impugned order dated 23/07/2008 which is challenged in Appeal No. E/461/2008. The demand for differential duty raised on the basis of the Commissioner s revised order fixing the ACP is under challenge in Appeal No. 70041/2013. Both appeals are taken up for decision through this Common order. 5. Heard Shri C. R. Das, Ld. Advocate and Shri A. K. Roy, Ld. AR for the Department. 6. The Arguments advanced on behalf of the appellant are summarized below:- (i) The Ld. Advocate submitted that the Lower Authorities have failed to appreciate the di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s observed that the figures reflected in the RG-I unless disputed represents the actual production of the factory and the same is required to be accepted. He prayed that the annual capacity of production may be re-fixed in terms of Section 3A (4), on the basis of actual production recorded in RG-1. 7. The Ld. DR justified the orders passed by the Lower Authorities. 8. He submitted that before re-fixing the ACP in terms of Section 3A (4), the assessee was required to produce evidence in support of his claim that production is lower than the capacity fixed under Section 3A (2). He further submitted that such evidence has not been produced by the appellant and as such, the Commissioners Order refixing the capacity as fixed earlier is ful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded in RG-1. 11. We have carefully considered the application made by the appellant dated 15/07/1998. In the said application, the appellant has outlined the following major reasons why the Annual Capacity of Production is claimed to be far lesser than the ACP fixed already on the basis of formula. (i) The appellant has started re-rolling mill initially and had got the electricity capacity sanctioned for the same. When the induction mill was started, they applied for additional load capacity to the Electricity supplier but during the period of dispute such additional load was never sanctioned. Accordingly, it is submitted the power supply received by the appellant s unit was highly unreliable and prove to frequent power cuts. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee to produce evidence in support of his claim, determine the actual production and redetermine the amount of duty payable by the assessee with reference to such actual production at the rate specified in sub-section (3). 13. In terms of the above provision, The Commissioner is required to re-fix the capacity of production after considering the evidence produced by the assessee in support of his claim for lower production. Both induction furnace as well as re-rolling mill processes which are severely dependent on the availability of Electric Power. Both the processes are power intensive and without adequate, reliable supply of power, these manufacturing process cannot be carried out. The appellant has placed on record severe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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