9911796707
TMI Blog2004 (4) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... ed their annual capacity of production to be 9600 MT per annum under Rule 96ZO of the Central Excise Rules, 1944; that they purchased one 3 MT capacity furnace on 16-4-1998 which was installed on 11-5-1998; that due to inadequate power supply to run both the furnaces and also due to technical fault in the second furnace, the same was not put to use by the Appellants; that the duty has been demanded and penalty has been imposed by the Commissioner on the ground that they had installed two furnaces in their factory and the duty has to be demanded under Rule 96ZO(3) of the Central Excise Rules on the basis of installed capacity. The learned Advocate, further submitted that the power demanded to run both the furnaces is 3500 KVA which was never ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot manufactured from the second furnace. 3.1. The learned Counsel mentioned that when the Central Excise officers visited their factory on 10-3-1999, the second furnace was not working; that as the said furnace was not in working condition, the supplier of the furnace had sent its engineer who was lodged in a hotel which is evident from the Railway Ticket and Hotel Receipt; that the Adjudicating Authority had therefore observed that "the assessees have adduced documentary material to support their defence that the production had in fact not taken place on account of non-supply of power. The enquiries of the Deptt. have not brought forth evidence to the contrary." Regarding the statement dated 10-3-1999 of Shri Anil Kumar Solanki, their Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25-7-1997 wherein it has been clarified that the capacity of the induction furnace is relatable to crucible(s) excluding the idle (spare or stand by) crucible and furnace capacity ascertained accordingly; that in the present matter the Appellants did not even have the idle capacity as the second furnace was not even in working condition; that it has been held by the Bombay High Court in Indian Seemless Steel and Alloys Ltd. v. Union of India, 2003 (156) E.L.T. 945 (Bom) that it is a well settled principle of law that the law does not compel a man to do that which he can not possibly do and the said principle is well expressed in legal maxim "lex non cogit ad impossibilia". Finally he said that Revenue may rely upon the decision in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended that as per the provisions of Rule 96ZO(3), the duty is to be discharged on the basis of installed capacity; that the Adjudicating Authority has given his findings in the impugned order that as a consequence of installation of the second furnace, the assessee had ipso facto incurred liability of duty despite the irregular power supply; that this is also the decision of the Tribunal in the case of Jindal Steel Power Ltd. 6. We have considered the submissions of both the sides. As far as the issue regarding working of second furnace is concerned, the Commissioner himself has not found the evidence convincing. He has given his specific finding in Para 13 of the impugned Order that "as far as the fact of functioning of the two furnace ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that both the furnaces were used." In view of these specific findings contained in the impugned order, which have remained unchallenged., it can not be claimed by the Revenue, that the second furnace was being used by the Appellants for manufacturing MS Ingots. 7. Now the only issue remains to be decided is whether the idle capacity is to be considered while determining the annual capacity of production of the Appellants. The Central Government has considered this aspect and clarified vide Circular No. 325/41/97-CX, dated 25-7-1997 that "the capacity of the induction furnace is relatable to crucible(s), excluding the "idle (spare or stand by)" crucible. This aspect may kindly be examined on basis of facts of each such case and the furna ..... X X X X Extracts X X X X X X X X Extracts X X X X
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