TaxTMI 
TaxTMI 
2009 (7) TMI 319
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....-in-Original dated 21-11-1998 as 36131.20 MT. The appellant had declared two furnaces, one 3.5 and another of 2.00 MT capacity and had opted to avail benefit of provisions of Rule 96ZQ(3) for discharge of duty liability on the basis of revised declaration dated 2-2-1999. By their letter dated 17-3-99, it was informed by the appellant that they have closed one induction furnace with the capacity of 2.00 MT and also requested for necessary proceedings in terms of Rule 4 of Induction Furnace Annual Capacity Determination Rules, 1997 (hereinafter called as the said rules). On the basis of the revised declaration, the Commissioner by its order dated 24-3-1999 re-determined the annual capacity of production for the period from 2-2-99 onwards for the two furnaces as 11200 MT and 6400 MT for discharge of excise duty liability. While determining the revised annual capacity of production by the party under letter dated 17-3-99, the claim of the party regarding closer of the furnace of 2.00 MT capacity was not accepted by the Commissioner. The appellant under letter dated 8-4-1999 again requested for re-determination of their annual capacity on the ground that the furnace with a capacity of 2....
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....is remanded to the Commissioner concerned for examining the original certificate of the manufacturer/trader to find out the capacity of the furnace and then examine this certificate in the light of the Rule 3(a) of the relevant rule and pass appropriate orders after providing the appellants a reasonable opportunity of being heard in person and presenting their case in defence" 5. Pursuant to the remand, the Commissioner, Central Excise, Kanpur noting that the remand was only for determination of the capacity of furnace/annual capacity of production after examining the original certificate of the manufacturer/trader in light of Rule 3 of the said Rules, on the basis of materials before the Commissioner reiterated its earlier order dated 22-2-2001. In fact, the operative portion of the impugned order reads thus- "(i) In view of the discussion and findings given above, I reiterate my Order-in-Original No. 4/Commr./Tech/2001, dated 22-2-2001 with respect to determination of Annual Capacity of Production (APC) of M/s. V.V.S. Concast Ltd., C-65 to 67, U.P.S.I.D.C, Industrial Area, Phase-II, Orai, Distt. Jalaun except that APC relevant for the period 2-2-99 to 16-3-99 shall be taken as ....
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....mmissioner on his part while passing the impugned order after taking into consideration the provisions of Rule 3 of the said Rules has observed that the relevant rule mandates the party to produce authentic copy of the manufacturer's/trader's invoice who had supplied or installed the furnace or crucible to the induction furnace unit and not the invoice relating to modifications carried out in the furnace or crucible and in the absence of such evidence, and in spite of opportunity being given to produce the relevant evidence, the party having failed to do so and invoice which had been produced was in respect of charges recovered towards the modification carried out, there is no relevant and valid material for determination of the furnace capacity as prayed for by the appellant. 9. Rule 3 of the said rules prescribe the manner, for ascertaining the annual capacity of the production in a factory wherein the goods are manufactured with the help of any induction furnace unit. Sub-rule (1) thereof provides that the Commissioner of Central Excise shall call for an authenticated copy of the manufacturer's invoice or trader's invoice, who have supplied or installed the furnace or crucible ....
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....s that the capacity of production for any part of the year, or for any change in the total furnace capacity, shall be calculated pro rata on the basis of the annual capacity of production determined in the manner stated in Rule 3. In case a manufacturer proposes to increase or reduce the capacity of induction furnace, the manufacturer shall intimate about the proposed change to the Commissioner of Central Excise in writing, with a copy to Assistant Commissioner of Central Excise, at least one month in advance of such proposed change, and shall obtain the written approval of the Commissioner before making such change. Thereafter, the Commissioner of Central Excise shall determine the date from which the change in the installed capacity shall be deemed to be effective. Obviously, therefore, there is elaborate procedure prescribed under the said rules for any change to be brought about in the capacity of induction furnace. It specifically provides that before introducing the change in the capacity of the induction furnace, it is necessary for the manufacturer to inform about the proposed change to the Commissioner, at least one month in advance. This provision clearly discloses that i....