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TMI Blog2008 (7) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... in P. Raval, for the Appellant. None,for the Respondent. [Common Order per : D.A. Mehta, J.]. - The Appellant-Revenue has proposed following three questions : "(a) Whether the Tribunal in the facts and circumstances of the present case, is justified in setting aside the order of fixing of annual capacity of induction furnace fixed at 5MT and thereby reducing to 4MT? (b) Whether the Tribunal in the facts and circumstances of the case has the jurisdiction to grant reduction of annual capacity of induction furnace from annual capacity of 5MT to 4 MT in light of Rule 3(1) of the Induction of Furnace Annual Capacity Determination Rules, 1997 read with Circular dated 25-7-1997? (c) Whether in the facts and circumstances of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orrect determination. In the second round the same position obtained and the Tribunal vide order dated 24-4-2007 came to the conclusion that reasonings adopted by the Commissioner in denying the claim were not correct. 3. Heard the learned Counsel for the Appellant. It is submitted that in light of Rule 3(1) of the Rules once the capacity of the furnace was taken as per invoice there was no question of changing the same as sought for by the assessee. That Rule 4 of the Rules on which reliance has been placed does not permit such an exercise once the Commissioner had fixed the capacity of the furnace and for the purpose of making such a change at least one month in advance, of such proposed change, the assessee is required to obtain writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... city of the furnace be comes 4MT. 5. The Tribunal has also taken a note of the verification report dated 8-3-2000 and letter dated 4-5-2000 of Deputy Commissioner, Central Excise which supports the claim of the assessee. The Tribunal has observed that if the Commissioner was of the opinion that the reports of the departmental officers were required to be verified the Commissioner ought to have called for such clarification instead of rejecting the reports outright. The certificates of the Manufacturer and the Chartered Engineer have been considered by the Tribunal. 6. The entire controversy has stemmed from the fact that initially the assessee produced only invoice in support of the claim for fixation of annual capacity of productio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss a substantial question of law, arises from the impugned order. The Appeal is accordingly dismissed. Tax Appeal No. 1619 of 2007. 1. In this Tax Appeal the same three questions have been proposed by the Appellant-Revenue as in case of Tax Appeal No. 1616 of 2007. It is not necessary to set out the facts and contentions in detail for the reason that this Appeal is in relation to the consequential demand raised upon fixation of annual capacity of production by the Commissioner at 5 Mts. 2. In light of the reasons recorded in order of even date in Tax Appeal No. 1616 of 2007 between the same parties the consequential demand raised on the basis of capacity of furnace fixed at 5 Mts cannot be sustained and in absence of any infirmity i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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