9911796707
TMI Blog2001 (8) TMI 1008X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the ACP. Section 3A was introduced in the Central Excises Act, 1944 for levy and collection of duty on specified items on the basis of ACP. Provisional capacity of the mill in the instant case was fixed at 692.233 MT taking into account the d factor. The determination was based on earlier verification. 3. The Assistant Commissioner of Head Quarter (Preventive) visited the factory of the appellants by surprise and took measurement of various parameters essential for determination of the ACP. He found that the d factor was 176 mm as against the earlier of 159 mm. Therefore, the Commissioner finally determined ACP of the factory as 2377.68 MT and ordered accordingly. 4. Arguing the case of the appellants, Shri N.C. Roychowdhury, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial indiscipline; that the ld. Commissioner has gone wrong by not following these directions; that the ld. Commissioner has relied upon more on the Rules than on the Section; that the sub-section (4) and Section 3A of the Central Excises Act specifically provides for determination of actual production. Ld. Sr. Counsel, therefore, submitted that the correct ACP of the rolling mill was 932.222 MT as determined provisionally. Ld. Sr. Counsel also submitted that the appellants have been paying duty on that basis and that further determination was not warranted and should be quashed. 7. Shri A.K. Chattopadhyay, ld. DR submits that the ld. Commissioner while deciding the case on de novo adjudication has considered all these points. He submits t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave submitted photo copy of relevant Bills under which they had procured gear pinion of size 158 mm in 1977 and March 1998. From these bill/invoice, it is found that the assessee had procured 3 gear pinion of size 158 mm in April 1997 and 4 gear pinions in March 1998. These invoices establish that they had procured gear pinion of size 158 mm. But the assessee till date at no stage produced any evidence to show that in 1997 or even in March 1998 when they had procured gear pinion of size 158 mm under cover of above invoices they had changed gear pinion of their mill by placing procured gear pinion having size 158 mm. Further the assessee have procured gear pinion of size 158 mm but they repeatedly claim the size of gear pinion centre as 159 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as verifiable and were verified correctly in presence of a responsible representative of the assessee. This fact of correct verification has been confirmed by the assessee in their under Section 14 statement as well as by putting signature on the measurement sheet. Hence the above prayer of the assessee is rejected. Similarly, Chartered Engineer s Certificate also does not help the assessee. 5.7 In view of above discussions, I confirm ACP in the case of Rolling Mill of the assessee as 2377.68 MT. 12. We find that the issue has been gone into in depth by the Commissioner. We do not see any reason to hold otherwise. We agree with the observations of the Commissioner that there was no violation of the principles of natural justice. 13. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 999 (32) RLT 82 (CEGAT) in the case of Meenakshi Castings Ors. and observations made therein with regard to applicability of sub-sec. (4) of Section 3A of CEA 44 does not interfere my finding as above in view of the decision of the Supreme Court relied in this order. 14. On analysis of the above observations, we note that the Commissioner has followed the directions of the Hon ble Supreme Court in the case of Venus Castings reported in 2000 (117) E.L.T. 273. The Commissioner has rightly followed the decision in the case of Venus Castings ignoring the directions of the Tribunal based on Meenakshi Castings Ors. reported in [1999 (112) E.L.T. 737 (Tribunal) = 1999 (32) RLT 82] because in the meantime, the Apex Court had already laid do ..... X X X X Extracts X X X X X X X X Extracts X X X X
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