2012 (7) TMI 571 - HC - Central Excise

Treating the duty payable only in respect of one furnace out of two - Annual capacity of production is required to be determined taking the installed capacity of two Furnaces for calculating the duty payable - appeal filed u/s 35 ( G) - Held that - Whether two furnaces installed by the appellant were functioning or out of two only one was functioning at the relevant time was essentially a question of fact and did not involve any question of law much less substantial question of law - when the Commissioner of Central Excise and then, the Tribunal had concurrently recorded a finding of fact that the appellant was at the relevant time not only opted for payment of the duty on the basis of their two furnaces and further, both were found in operation then such finding being pure finding of fact - appeal is found to be devoid of any merit - against assessee.

Summary

Issues:
1. Appeal under Section 35 G of the Central Excise Act, 1944 regarding capacity determination and duty liability for Induction Furnaces.

Analysis:
1. The appellant, a manufacturer of M.S. Ingots, appealed against the Tribunal's order confirming the duty liability based on the installed capacity of two Induction Furnaces of 3 MT each. The appellant argued that only one furnace was functional at a time due to disconnection of power supply, thus, annual capacity should be determined considering only one furnace. The Commissioner rejected this claim, stating duty must be paid based on the installed capacity of both furnaces.

2. The Tribunal upheld the Commissioner's decision, emphasizing that the appellant's claim lacked merit. The appellant's argument based on Circular No. 325/41/97-CX was refuted, and it was highlighted that the appellant's choice to pay duty under a specific rule precludes them from claiming deductions under other sections. The Tribunal cited the precedent set by the Supreme Court in Commissioner of Central Excise and Customs vs. Venus Castings (P) Ltd, supporting the decision that duty payment mode cannot be changed once opted.

3. The High Court concurred with the Tribunal's findings, emphasizing that the issue of furnace functionality was a question of fact, not law. The Court noted that the appellant's factual explanation was insufficient to challenge the authorities' findings. Referring to the Supreme Court's ruling, the Court reiterated that once a duty payment mode is chosen, it cannot be altered. The Court dismissed the appeal, stating it lacked any substantial question of law and was primarily focused on factual disputes.

4. Consequently, the Court dismissed the appeal, revoked any interim orders halting duty recovery, and directed the appellant to comply with the Tribunal's decision. The judgment highlighted the importance of adhering to chosen duty payment modes and upheld the authorities' determination of duty liability based on installed capacity, emphasizing the factual nature of the dispute.