9911796707
TMI Blog2002 (3) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of Rule 96ZO(1) of Central Excise Rules, 1944. Accordingly, the Commissioner vide his Order dated 23-3-98 fixed the Annual Capacity of Production of the Induction Furnace of the appellant company as 6,400 M.Ts. in terms of the provisions of sub-rule 4 of Rule 3 of the Induction Furnace and Annual Capacity Determination Rules. Accordingly, the appellants were liable to pay duty @ Rs. 750.00 per M.T. on the clearance of their subject goods in terms of the Annual Capacity so fixed by the Commissioner. 2.The appellants were issued a show cause notice dated 1-11-99 alleging that during the period from April, 1999 to August, 1999, the appellants were to pay Rs. 20.00 lakh as their duty liability in terms of the Annual Capacity fixed, where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Shri B.N. Chattopadhyay, learned Consultant for the appellants and Shri A.K. Pandit, learned JDR for the Revenue. 6.It is on record that the appellants never opted for payment of duty in terms of the provisions of Rule 96ZO(3), which requires the assessee having furnace capacity of 3 M.Ts. to pay duty on lump-sum basis of Rs. 5.00 lakh per month. They have admittedly opted for payment of duty in terms of the provisions of Rule 96ZO(1) which require the assessee engaged in the manufacture of steel ingots to debit the amount calculated @ Rs. 700.00 per M.T. at the time of clearance of ingots from his factory on the Annual Capacity of Production of his factory, as determined under the Induction Furnace Annual Capacity Determination Rules, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urnace Annual Capacity Determination Rules, 1997. Section 3A(4) of Central Excise Act, 1944 is to the effect that where an assessee claims that the actual production of notified goods in his factory is lower than the production determined under sub-section (2), the Commissioner of Central Excise shall, after giving an opportunity to the assessee to produce evidence in support of his claim, determine the actual production and determine the amount of duty payable by the assessee with reference to such actual production at the rate specified in sub-section (3). Sub-section (5) of Section 3A is to the effect that where the Commissioner of Central Excise determines the actual production under sub-section (4), the amount of duty already paid, sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould come into play. However, the appellants' stand has not been accepted by the Commissioner on the ground that they have not been able to substantiate their claim that their actual production was less than the A.C.P. fixed. On the other hand, it is the appellants' contention that their actual production recorded in the statutory records like RG-1 registers and RT-12 returns, by them. The Commissioner instead of making the observations against them, should have called for the said records and verified their actual production. We agree with the above contention of the appellants. The figures reflected in the RG-1 records unless disputed, represents the actual production of a factory and the same are required to be accepted. Inasmuch as the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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