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Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2003 (4) TMI AT This

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2003 (4) TMI 305 - AT - Central Excise

Issues:
1. Whether recovery could be ordered without issuance of show cause notice under Section 11A of the Act.
2. Whether the furnace installed in the mill is Batch Type or Pusher Type.
3. Whether Rule 5 of the Rules of 1997 could be invoked for determining the annual capacity.

Analysis:

Issue 1:
The judgment refers to a previous decision by the Larger Bench in Mohinder Steels Ltd. v. CCE, Chandigarh, which ruled that no notice under Section 11A of the Act is required for recovery under the Compound Levy Scheme. The Tribunal held that this decision stands and no notice is necessary for duty recovery under the scheme. The argument that the decision is sub judice before the Apex Court was dismissed, as the operation of the judgment was not stayed. Therefore, the first issue was decided against the appellants.

Issue 2:
The main contention was regarding the nature of the furnace installed in the rolling mills, whether Batch Type or Pusher Type. The Commissioner based his findings on the report of the Superintendent, who inspected furnaces of multiple assesses. However, the Superintendent's report did not consider crucial aspects such as whether a Pusher Type furnace could work with a slow/low speed rolling mill. The appellants presented a Chartered Engineer certificate confirming their furnace as Batch Type, which was overlooked by the Commissioner. The Tribunal found that the furnace was indeed Batch Type, not Pusher Type, in favor of the appellants.

Issue 3:
In Appeal No. E/1169/2000-NB(S), an additional issue was raised concerning the application of Rule 5 of the Rules of 1997 for determining annual capacity. The Commissioner had wrongly applied Rule 5 instead of Rule 3, which led to an incorrect determination of annual capacity. The Board's Circular clarified that in cases of one heating furnace with two rolling mills, the capacity of the higher mill should be considered. The Tribunal held that the Commissioner's order in this regard was legally unsustainable and should be set aside.

In conclusion, the Tribunal set aside the impugned order of the Commissioner in both appeals, allowing the appellants' appeals with any consequential relief permissible under the law.

 

 

 

 

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