9911796707
TMI Blog2005 (3) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Appeal No. E/1172/2001 is against an order passed by the Commissioner of Central Excise fixing the Annual Capacity of Production (ACP) of the appellants induction furnace at 34,693.43 MTs in terms of Rule 5 of the Hot Re-Rolling Mills Annual Capacity Determination Rules, 1997 (ACD rules, for short) confirming a demand of duty of Rs. 1,82,12,120/- against them for the period September, 1997 to March, 2000. The second Appeal No. E/296/2002 is against a consequential penalty on the appellants. 3. The Commissioner s order impugned in Appeal No. E/1172/2001 was passed pursuant to the Tribunal s remand Order No. 655/2000 dated 16-5-2000 [2000 (121) E.L.T. 420 (Tri.)], whereby an earlier ACP order in respect of the same furnace of the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be sustained in law. Ld. Counsel for the appellants has elaborated the grounds of this appeal and has submitted that the Commissioner has erred in relying on the first verification report submitted by Dr. (Prof.) L. Vijayaraghavan, IIT, Madras, wherein the furnace was certified to be of Pusher Type . Counsel submits that the very same expert in his second report dated 11-1-2001 certified the same furnace to be of Batch Type . According to ld. Counsel, in the above, circumstances, ACP requires to be determined afresh by the Commissioner after calling for opinion of another expert, if the second report of Prof. L. Vijayaraghavan is not acceptable. Counsel has also referred to change of parameters discussed in para 14.8 of the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants have a valid challenge against the demand of duty. Admittedly, the demand is squarely based on the ACP as communicated by the Assistant Commissioner to the assessee. That ACP was set aside by this Tribunal and hence could not have been valid basis for a demand of duty on the assessee. The ACP determined by the Commissioner under Rule 5 of the ACD Rules 1997 is the one which has been determined by the competent authority. All the show-cause notices in question were issued prior to the date on which the Commissioner determined the ACP. It is noticed that the ACP determined by the Commissioner is not at variance with the ACP communicated by the Assistant Commissioner. This, however, does not appear to support the demand based on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel s suggestion that a second opinion be obtained, and considered by the Commissioner. Again, the Commissioner, having accepted the change of parameters sought to have reckoned the same in the matter of determination of ACP. The case law cited by counsel supports this position. On these two grounds, we have to send the case back to the Commissioner for fresh determination of the appellants ACP. Insofar as the demand of duty is concerned, it is upto the department to raise demand depending on ACP to be determined by the Commissioner in accordance with law. Insofar as the penalty is concerned, the challenge succeeds as the demand of duty has been set aside. 9. In the result, we set aside the impugned orders and allow the appeals by way ..... X X X X Extracts X X X X X X X X Extracts X X X X
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