TaxTMI 
TaxTMI 
2007 (10) TMI 5
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....f the Customs, Excise and Gold Control Appellate Tribunal dated 22nd May, 2003 as well as Miscellaneous order dated 6th February, 2004, was dismissed. 3. The issue involved in this appeal is as to how the deemed annual production in terms of Section 3A of the Central Excise Act, 1944 which was brought into force with effect from 14.05.1987 should be determined. Appellant herein installed an induction furnace, the capacity whereof was 8 M.Ts. It had asked the Gujarat State Electricity Board (Board) for supply of 3000 KVA of electrical energy. The Board agreed to supply only 1900 KVA input of power. The said furnace was manufactured by Inductotherm (India) Ltd. Kee....
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....at 11 KV to your unit to Khakhariya, it is informed you that your total power requirement of 3000 KVA cannot be catered at 11 KV as per feasibility received from our field office. Please note that as per recent amendment condition No. 28 power requirement of 2500 KVA and above requirement to be catered at 66 KV or above voltage as per condition of supply. We are accordingly advising our E.E. (Const.) Amreli to send feasibility report.' 5. A certificate dated 4.09.1997 was issued by a Chartered Engineer wherein the following observation was made: 'c. Crucibles are converted to 4500 Kg. capacity due to lack of power supply.' 6. &....
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....cause filed by the appellant therein on 6.02.2001 wherein it was stated: "We have found out from our records that on the date of carrying out modifications i.e. on 14.5.1997 we had addressed a letter dated 14.5.1997 to the Superintendent of Central Excise, AR-Sihor, intimating that we were carrying out changes in the capacity of our crucible through M/s Furcon Consultancy Services. We have given detailed reasons necessitating such modification. A copy of the said letter dated 14.5.1997, duly received in the office of the said Superintendent, is enclosed for your perusal. After completion of the changes, we again informed the said Superintendent vide our letter dated 16.5.1997, a receipted copy of which is also enclosed ....
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.... which such goods are produced, by the Commissioner of Central Excise and such annual capacity of production shall be deemed to be the annual production of such goods by such factory: Provided that where a factory producing notified goods is in operation only during a part of the year, the production thereof shall be calculated on proportionate basis of the annual capacity of production." 10. The show cause notice dated 19.06.2000 was issued to the appellant by the respondent on the premise that the capacity of the induction furnace is in excess of 4.5 MTs. The question as to whether in effect and substance the appellant had reduced the capacity of the said induction furnace or not is essentially a....
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.... Shri B.K. Shukla stated that the modification had been carried out in one of the crucible only but a certificate was issued in respect of both the crucibles. The Tribunal, therefore, arrived at the finding that in fact no modification was carried out in the crucible of the said induction furnace. Various other circumstances which were relevant for determination of the issue, viz., the conduct of the parties, had also been taken into consideration. 11. The Tribunal in its order dated 22.05.2003 held: "4. The learned Advocate, further, contended that the Commissioner seems to have laboured under a misconception of the scope of ACD Rules as he had observed that change in the working ....
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....legible) 'installed capacity'. In the context of the other Rule it is clear that (illegible) too the capacity of a furnace, not when it was initially constructed, but (illegible) the increase or decrease referred to in that Rules, newly determined (illegible) capacity. He emphasized that since Rule 4 provides for change (illegible) capacity in a case where the capacity is already fixed at the commencement of the scheme, the change which has already taken place before (illegible) commencement of the scheme, is required to be given due weightage (illegible) consideration; that the last sentence of Rule 4 of ACD Rules makes (illegible) obligatory on the part of Commissioner to determine the date from which the change in the instal....