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TMI Blog2012 (5) TMI 751X X X X Extracts X X X X X X X X Extracts X X X X ..... sed on the capacity of production. 3. Section 3A empowers the Central Government to levy excise duty on manufacturer of certain notified goods on the basis of annual capacity of production to be determined by the Commissioner of Central Excise in terms of the Rules to be framed by the Central Government. The said Section 3A was inserted and omitted from time to time. It was inserted in the Act for second time by Act No. 26 of 1997 with effect from 14th May, 1997. 4. The production capacity of furnace of the appellants herein was 4 M.T. initially. Subsequently, the appellants got reduced the annual production capacity of the furnace as provided under the relevant Rules and applied to the Commissioner for re-determination of the reduced capacity of the furnace. The Commissioner got the furnace measured and determined the capacity of furnace at 3.59 M.T. as against 3 M.T. claimed by the appellants. The order of the Commissioner was subject matter of challenge and it ultimately reached to the Tribunal in the first round of litigation. The Tribunal by its earlier order dated 19th July, 2000 accepted the contention of appellants that the order determining capacity was passed in vio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts certifying the reduction in production capacity of furnace by any other manner. Reliance was placed on the Apex Court judgment in the case of Commissioner of Central Excise, Chandigarh v. Doaba Steel Rolling Mills, 2011 (269) E.L.T. 298 to support his contention that in absence of any Rule with regard to re-determination of capacity of furnace enhanced or reduced subsequent to installation of furnace, the changed capacity will be determined as per Rule 3(a) of the said Rules. 7. In reply, Sri S.P. Kesharwani, learned standing counsel appeared for the department and submits that the certificate filed by the appellants was not the certificate by the manufacturer of the said furnace and as such, the said certificate cannot be relied upon. It has no evidentiary value. On actual measurement, the production capacity of the furnace was re-determined. No fault could be pointed out with regard to measurements done by the Excise Officials. There is no error in the order under appeal. It was further submitted that on earlier occasion, when the matter had reached to the Tribunal, no objection with regard to measurement, etc. was forwarded by the appellants and only objection was that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, if not so possible, on the basis of any other material as may be relevant for this purpose. The Commissioner may, if he so desires, consult any technical authority for this purpose; (3) (4) . 4. The capacity of production for any part of the year, or for any change in the total furnace capacity, shall be calculated pro rata on the basis of the annual capacity of production determined in the above manner. In case a manufacturer proposes to increase or reduce the capacity of induction furnace, such manufacturer shall intimate about the proposed change to the Commissioner of Central Excise in writing, with a copy to Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, at least one month in advance of such proposed change, and shall obtain the written approval of the Commissioner before making such change. Thereafter the Commissioner of Central Excise shall determine the date from which the change in the installed capacity shall be deemed to be effective. 10. Sub-rule (1) of Rule 3 provides for determination of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he factual aspect of the case is that the appellants got reduced annual capacity of production of furnace already installed. In this connection, strong reliance has been placed upon a voucher issued by Industofur Engineers I.N.C. dated 11th February, 1999, reproduced in the order of the Tribunal. Therein, it is mentioned that production capacity was reduced from 4 M.T. to 3 M.T. in the column of description . It is written that the charges are related to JOB WORK FOR . This is anchor sheet of the appellants case. The said document has not been relied upon any of the authorities including the Tribunal on the findings that it relates to JOB WORK . At this juncture, learned counsel for the appellants laid emphasis with the help of judgment of Apex Court in Doaba Steel Rolling Mills (supra) that the capacity of furnace should be taken as 3 M.T. by invoking Rule 3(1) of the Rules, 1997. 14. We see no reason to agree with him. Rule 3(1) of the Rules envisages a document in the form of authenticated copy of the manufacturer s invoice or trader s invoice, who have supplied or installed the furnace. There is no material before us to show that the furnace in question was supplied or i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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