TaxTMI 
TaxTMI 
2005 (4) TMI 60
X X X X Extracts X X X X
X X X X Extracts X X X X
....tory producing such notified goods known as the Induction Furnace Annual Capacity Determination Rules, 1977. By the Rules, the ACP of a factory was taken to be a fixed multiple of the total capacity of the furnaces installed in the factory. The manner of levy and collection of duty was governed by Rule 96(ZP) of the Central Excise Rules, 1944 also issued under Section 3A of the Act. Circular dated 26th February, 1998 had been issued by way of a clarification in answer to questions raised in connection with the operation of the Rules. One of the questions so raised was : "How would the annual capacity of production be determined if a unit has more than one rolling mill in the same premises but operates only one rolling mill at a time." 3.I....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... preferred by the appellant to the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) which rejected the appellant's appeal and affirmed the Commissioner's order. The appellant filed a Reference Petition under Section 35H(I) of the Act as well as a writ petition contending that the respondents were not justified in determining the ACP of the appellant by taking the capacity of both the mills together. The High Court dismissed the Reference Application and the Writ Petition holding that no question of law arose from the order of the Tribunal. It was also found that the CEGAT had considered all aspects of the matter and had correctly determined the question raised. 5.The appellant has contended that all the fora had erred in overl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....es had not been disputed by the appellant before the Commissioner. It is said that the Commissioner had applied his mind to the expert's certificate but had rejected it because it was issued after a lapse of nine months from the date of the withdrawal of the capacity based assessment scheme on 31st March, 2000. The Commissioner in fact determined the issue on the basis of the admitted facts and on an interpretation of the 1998 Circular. 7.The respondent's contentions are correct. It is not the appellant's case that the 1998 Circular was incorrect. On the contrary it has been relied on to claim that the ACP should have been determined with reference to the mill which had the higher capacity alone. The circular in answer to a query which exa....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... 325/41/97-CX., dated 25-7-1997 and 326/42/97-CX. to hold that where it was not technically possible to run two mills simultaneously because of a common power supply, the capacity of the stand by mill was not to be taken into consideration for determining the ACP. 10.We do not agree. Separate schemes were formulated under Section 3A of the Act in relation to induction furnaces and hot re-rolling mills. Circular 325 dated 25-7-1997 dealt with induction furnaces and specifically provided : "In this context, it is understood that some induction furnace units have, what they call "idle" crucible. It is reported that at any point of time only one crucible is used and the other remains idle. In such cases, it is claimed, the induction furnace ....