2017 (10) TMI 126 - AT - Central Excise

Clandestine manufacture - determination of production capacity of machines - Rule 173E of Central Excise Rules, 1944 - Held that - we do not see any reason to disagree with the findings of the Ld Commissioner, who has rightly held that determination of production capacity of machines installed in other premises would be a futile exercise, as it could not give a correct picture of production capacity of the appellant - appeal dismissed - decided against appellant.

Summary

Issues:
1. Remand by Tribunal for determination of production capacity of machines.
2. Failure to make machines available for trial run.
3. Request for trial production on similar make machines at other units.
4. Adjudication based on evidences available on record.
5. Dismissal of appeals due to unavailability of machines for trial run.

Analysis:
1. The Tribunal remanded the case to determine the production capacity of the machines based on the appellant's plea that they lacked the capacity to manufacture the alleged quantity of goods. The Tribunal directed the Adjudicating Authority to reevaluate production capacity and unrecorded production, considering factors like private records and raw material consumption. The Ld Commissioner proceeded with de novo adjudication after the remand, as the appellant failed to provide the machinery for determining production capacity.

2. The appellant's Chartered Accountant argued that the factory was closed during adjudication and requested trial production on similar machines at other units. However, the Ld Commissioner decided the case based on available records as the appellant did not make the machines accessible for capacity determination. The Revenue's representative supported the Commissioner's decision, highlighting the appellant's failure to comply with the Tribunal's order for machine availability.

3. The Ld AR for the Revenue contended that determining production capacity in other premises would be ineffective due to variations in machine conditions and age. The Ld Commissioner's findings emphasized the impossibility of redetermining production capacity without the specific machine in question. The Commissioner rejected the appellant's request for trial production elsewhere, citing the need to base decisions on existing evidence.

4. The Tribunal emphasized the importance of trial runs to ascertain production capacity, which the appellant accepted without challenging later. The Ld Commissioner's decision to rely on available evidence for adjudication was upheld, considering the appellant's failure to provide the necessary machinery for capacity determination. The dismissal of appeals was justified due to the appellant's inability to conduct trial runs as directed by the Tribunal.

5. In conclusion, the Tribunal upheld the Ld Commissioner's decision to proceed with adjudication based on existing evidence, as the appellant did not fulfill the requirement of making the machines available for trial run. The dismissal of the appeals was justified, as the appellant did not contest the order for trial runs and failed to approach the Tribunal regarding the unavailability of the machines for capacity determination.