9911796707
TMI Blog2002 (5) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order. 2. Shri Bipin Garg, learned Advocate, submitted that the appellants manufactured MS ingots and during the relevant period were paying Central Excise duty under the provisions of Section 3A of Central Excise Act; that their annual production capacity was fixed as 2.813 MT on the basis of measurements taken by the Revenue; that the present appellants took over the appellant-company in April, 1999 and requested the Department to redetermine the annual production capacity as it has been fixed on the higher side; that on 20-5-1999 Central Excise officers took the measurement of the induction furnace without the assistance of any technical expert that thereafter, a show cause notice was issued alleging that the appellants had en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder and emphasized that when the officers after visiting the unit of the appellants took the measurements, they found that parameter d(1) has increased from 84 to 94 and (h) has been enhanced from 115 to 119.5; that the adjudicating authority has not fixed the capacity at 3.116 MT as proposed in the show cause notice as it was observed that the appellants were having two crucibles which were used alternatively; that the adjudicating authority, taking into this consideration, took the average of both the crucibles for fixing the total capacity of furnace which came to be 2.99 MT. He finally, submitted that as the officers have found the changes in dimensions of d(1) and h and no permission has been taken by the appellants to effect the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, we agree with the learned Advocate that there is no evidence to the effect of their enhancing the capacity of the induction furnace and except change in two parameters, no further change has been pointed out nor any material has been brought on record to show that these parameters were in fact enhanced by the appellants. We are, therefore, of the view that for want of sufficient material, the charge of enhancement of these parameters cannot be upheld and accordingly the penalty under Section 11AC of the Act is not imposable on the appellants. We order accordingly. We also agree with the submissions of the learned Advocate that while confirming the duty in the adjudication order, the Commissioner cannot travel beyond the period mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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