9911796707
TMI Blog2017 (8) TMI 1214X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Central Excise Act, 1944 and opted for monthly payment of duty. 3. The assessee filed a declaration dated 15.09.1997 to the jurisdictional Commissioner for fixing of Annual Capacity of Production (hereinafter referred to as "ACP") declaring their furnace was of the 'pusher type'. On the basis of such a declaration, the ACP was fixed and toe assessee paid duty at the rate of Rs. 2,61,570/- per month from September, 1997 to October, 1998. The factory of the assessee was closed from 13.10.1998 until April, 1999. At the time of reopening of the factory, the assessee filed a fresh declaration dated 20.05.1999 intimating that there is change in the type of furnace installed and claimed that their furnace was 'batch type' liabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accordingly, he set aside the duty demand. 4. Aggrieved by the impugned order, the present appeal has been filed by Revenue. 5. With the above background, Shri A. Cletus, Additional Commissioner on behalf of Revenue argued the case and none present for the assessee. 6. Learned departmental representative argued the grounds of appeal of Revenue. He referred to the report of the expert team in which it has been observed that the raw material is fed into the furnace through a mechanism operated by an electric motor. In view of the above, he argued that the type of furnace was 'pusher type', which would be liable for a higher duty per month. Accordingly, he submitted that the impugned order needs to be set aside. 7. We have gone th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the technical experts, who were part of the Committee. While we are able to appreciate the fact that he has gone ahead with the decision in view of the case being very old. However, it cannot be overlooked that the statutory power for refixing such ACP is not with the Commissioner (Appeals) but with jurisdictional Commissioner. He alone can determine and fix the ACP. 9. We also note that the Hot Re-rolling Mills Annual Capacity Determination Rules have been the subject-matter of challenge upto to the Hon'ble Supreme Court. The vires of the Rule 96ZO of the Central Excise Rules have also been challenged on the ground that it is inconsistent with the provisions of the Act. It has been brought to our notice that the apex court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
