2008 (2) TMI 886 - AT - Central Excise

Summary

Issues involved: Determination of annual capacity of production of induction furnaces u/s Rule 96ZO(3), consideration of power situation in capacity determination.

Issue 1: Determination of annual capacity of production
The Tribunal directed the Commissioner to reconsider the issue of differential duty payable by the appellant based on the determination of annual capacity of production. The Commissioner confirmed the duty without considering the directions for re-determination of capacity based on power situation. The Tribunal referred to a similar case involving M/s. Electromelt Ltd. where it was held that capacity must be finalized before demanding differential duty. Citing judgments from various High Courts, the Tribunal emphasized the importance of considering power availability in determining annual capacity of production. Consequently, the Tribunal set aside the Commissioner's order and remanded the case for proper consideration of capacity determination based on electricity availability.

Issue 2: Consideration of power situation in capacity determination
The Tribunal highlighted the significance of power availability in determining the annual capacity of production of induction furnaces. Referring to judgments from different High Courts, the Tribunal emphasized that electricity availability during the relevant period is a crucial factor in assessing production capacity. Relying on legal precedents, the Tribunal concluded that the order confirming the differential duty without considering power availability was unsustainable. Therefore, the Tribunal set aside the Commissioner's order and directed that capacity determination should take into account the availability or non-availability of electricity during the relevant period before adjudicating any demands.

Conclusion:
The Tribunal allowed the appeal by way of remand, emphasizing the need for proper consideration of power situation in determining the annual capacity of production of induction furnaces. The order confirming the duty, interest, and penalty was set aside, and the case was remanded for a reassessment based on the availability or non-availability of electricity during the relevant period.