Customs, Excise and Gold Tribunal - Mumbai
Shreeji Concast Ltd. vs Commissioner Of Central Excise And ... on 3 August, 2001
Equivalent citations: 2002(139)ELT131(TRI-MUMBAI)
ORDER Gowri Shankar, Member (T)
1. Appeal taken up for disposal after waiving deposit.
2. The appellant manufactures by employing an induction furnace. We are concerned in this appeal with the determination of the annual capacity of this furnace, for the purposes of Induction Furnace Annual Capacity Determination Rules, 1997 for the year 1997-98. The appellant had initially declared five tons to be the capacity of the furnace. Later on 27.10.1997, it said that the capacity was in fact four tons. It said that it had declared earlier the capacity on the basis of the invoice issued by the manufacturer of the furnace. On verification, the capacity was lower. It had asked the manufacturer of the furnace to verify the capacity. As a result, the capacity was found to be four tons. It enclosed copy of the certificate issued by Inductotherm (India) Ltd. and by Deepak Shah, Chartered engineer, indicating the capacity within four tons.
3. The Commissioner however declined to consider these documents. In the order that he passed dismissing the claim for redetermination of the capacity, which is impugned before us, he seems to say that it is the installed capacity of the furnace that the rules require determined, not the capacity that may be varied after installation. He says in so many words, that the appellant had removed its furnace and substituted with the furnace of four tons, it would have a legitimate claim for redetermination of the capacity, he however says that this cannot be permitted where there is a charge in the existing furnace.
4. This conclusion is clearly contrary to the terms of the rules. The rules do not at any point speak of capacity of a furnace when it is first manufactured. They refer to only capacity and the specified parameter on which the capacity is to be based. One of the parameters is the total capacity of the furnace installed in the site. Such capacity is evidently the capacity that is present. The capacity of the furnace would be the quantity of bunch that it can produce in one operation in one bunch. The annual capacity would be based upon it.
5. That this is so it is clear from the provisions of rule 4. This rule provides for determining the annual capacity in case of where a manufactures proposes to increase or reduce the capacity of the induction furnace. If what the Commissioner says is accepted as correct, this would have rendered meaningless. No doubt the rule does refer to "installed capacity". In the context of the other rule it is clear that this is too the capacity of a furnace, not when it was initially constructed, but after the increase or decrease referred to in that rule newly determined installed capacity.
6. Having laid down the position in law, we would now like to remand the matter to the Commissioner to determine in accordance with law, the actual capacity of the furnace, on the date from which it is to be given effect. The appeal is accordingly allowed. Impugned order set aside.