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TMI Blog2005 (9) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... cess. Such units were liable to pay duty at compounded rates in terms of Section 3A of Central Excise Act, 1944. 3. Facts of the case may be noted first. The appellant opted for payment of duty under compounded levy scheme. His letter dt. 8-9-97 specifically stated - "There are two rolling mills installed in shed but electric Motor Fly Wheel to drive the rolling mill is one. Both the rolling mill cannot be put into production at a time. This fact may kindly be kept in view while determining the production capacity of the said mill and the capacity may be determined in respect of one mill only". Ld. Commissioner carried out verification and passed a provisional assessment order dt. 27-3-98. This order also notes that there were two m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction mill was to be basis. Ld. Counsel has pointed out that this position remains clarified by the Central Board of Excise Customs No. 345/40/97-TRU, dt. 26-2-98. We may read that clarification also. "Point No. 8 : How would be the annual capacity of production be determined if a unit has more than one rolling mill in the same premises but operates only one rolling mill at a time". The contention of the Counsel is that, having taken the capacity of the higher mill for determining the appellant's annual capacity, ld. Commissioner could have taken into account for the purpose of Rule 5 also the production of the higher capacity mill and not the production of both the mill. The appellant emphasises that the production in the higher capa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he capacity of the higher capacity mill. This was after verification of the machinery by Supdt. The report verification gives the impression that there is only one furnace working. In such a situation, the contention of the ld. DR that both the furnaces were working, cannot find acceptance. The comparison in terms of Rule 5 was also required to be done only with the actual production during the previous year for the higher capacity mill. 8. In the view we have taken above; the appeal merits acceptance. Accordingly, it is ordered that the annual capacity of the mill shall be taken as 6201.79 m.t. and not 10594.508 m.t. as determined in the impugned order. The appeal is allowed. (Order dictated in the open Court) - - TaxTMI - TMITax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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