Customs, Excise and Gold Tribunal - Delhi
Awadh Alloys (P) Ltd. vs Commissioner Of Central Excise on 3 June, 1999
Equivalent citations: 1999(112)ELT719(TRI-DEL)
ORDER G.R. Sharma, Member (T)
1. The appellants have filed captioned appeal assailing the order of the ld. Commissioner of Customs & Central Excise. The ld. Commissioner in the order found the Annual Capacity Production of Rolling Mills as 1968 M.Ts. but held that as per para 5 of the Notification No. 45/97-C.E. (N.T.), dated 30-8-1997, the Annual Capacity of Production of the appellant's mills has been fixed as 4641 m.t. w.e.f. 9-9-998.
2. It is a case for fixation of the Annual capacity of production of Rolling Mills when there was a change in the parameters envisaged for determining the Annual Production Capacity.
3. Arguing the appeal Shri Alok Arora, ld. Counsel submits that the Annual Production Capacity on the basis of the parameters was found to be 1968 mts. He submits that the ld. Commissioner instead of fixing this capacity fixed the annual production capacity of their rolling mills as 4641 m.t. He submitted that he would like to assail the effective date of the implementation of the Annual Production Capacity. Ld. Counsel submitted that the ld. Commissioner relied on para 5 of the Notification No. 5/97-CE., dated 30-8-1997. He submitted that this clause was not applicable in their case inasmuch as their factory was in production during the year 1997-1998 and the change in the parameters was effected only on 31-8-1998 after obtaining the permissions of the Commissioner on 9-8-1998. He submitted that the relevant rule for the purpose of determining Annual Production Capacity after effecting a change in the parameters was sub-clause 2 of Clause 4 of Notification No. 32/97-C.E. (N.T.), dated 1-8-1997. He submitted that this clause specifically stipulated that "(2) in the case of a manufacturer proposes to make any change in installed machinery or any part thereof which tends to change the value of either of the parameters (d), (n), (e), (i) and speed of rolling referred to in Sub-rule 3 of Rule 3. such manufacturer shall intimate about the proposed change to the Commissioner of Central Excise in writing with a copy to the Asstt. Commissioner of Central Excise atleast one month in advance of such proposed change and shall obtain the written approval of the Commissioner before making such change. Thereafter the Commissioner of Central Excise shall determine the date from which the change in the installed capacity shall be deemed to be effective."
4. Ld. Counsel submitted that on 2-7-1998, the appellant submitted a proposal to the Commissioner for permission to change parameters of the rolling mill. The Commissioner under his letter dated 19-8-1998 intimated the permission. He submitted that on 31-8-1998 intimation was sent about change in the parameters of the mill. Reminder was sent on 3-9-1998 and therefore, the permission should have been accorded to them for change in the Annual Production Capacity w.e.f 1-9-1998 and the capacity should have been taken as 1968 m.t.
5. Ld. DR Shri Satnam Singh reiterates the findings of the ld. Commissioner.
6. We have heard both sides, we have perused the evidence on record as also the relevant notifications. We find that in the case before us Clause 5 of Notification 45/97, dated 30-8-1997 was not the relevant clause for determination of Annual Production Capacity when there was a change in the parameters. In the instant case, the admitted position was that there was a change in the parameters. Ld. Commissioner had come to the conclusion that 1968 m.t. was the Annual Production Capacity of the Mill on the basis of changed parameters. Ld. Commissioner followed para 5 of Notification No. 45/97 instead of following sub-clause 2 of Clause 4 of Notification No. 32/97, dated 1-8-1997. The admitted position in this case was that there was a change in the parameters. Since there was a change in the parameters, the appropriate clause for consideration of this change was sub-clause 2 of Clause 4 of Notification No. 32/97, dated 1-8-1997. Thus we hold that the new Annual Production Capacity of the mill will be 1968 m.t. The second pertinent question, therefore, arose as to what should be the effective date for application of the changed Annual Production Capacity. A perusal of sub-clause 2 of Clause 4 of Notification No. 32/97, dated 1-8-1997 stipulates "Thereafter the Commissioner of Central Excise shall determine the date from which the change in the installed capacity shall be deemed to be effective".
From the correspondence exchanged between the appellant and the Department, we note that an intimation about the change of the parameters was sent to the Department on 31-8-1998. Therefore, the date of intimation can be only on order after 31-8-1998. From the impugned order, we find that the effective date has been indicated as 9-9-1998. Since 9-9-1998 is a date which is within a reasonable time, we do not see any need to interfere with this date.
7. In view of the above findings, we hold that the Annual Production Capacity of 1968 m.ts. will be w.e.f. 9-9-1998. The appeal is allowed in the above terms with consequential relief, if any, in accordance with law.