VENUS CASTINGS (P) LTD. Vs. CCE

JUDGEMENT

(1.) THE Commissioner of Central Excise, Kanpur in the impugned order determined the annual capacity of the production of M/s. Venus Castings (P) Ltd. as 19296 M.T. (9600 for GEC and 9696 for ABB) under sub -rule 4 of Rule 3 of Induction Furnace Annual Capacity Determination Rules, 1997. The facts of the case briefly stated are that the appellants are manufacturer of M.S. Ingots of non -alloy steel. Consequent upon the introduction of compounded levy on M.S. Ingots w.e.f. 1.9.1997, the appellants filed their declaration declaring the total capacity of the two furnaces as 3.00 M.T. for GEC make furnace and 2.57 M.T. for ABB make furnace. They enclosed copies of invoices in support of their declaration. In the invoice of the Induction Furnace issued by M/s. GEC, the capacity of the furnace has not been indicated in respect of the ABB make Induction Furnace, the capacity of 2.5 tonnes to 3.00 tonnes has been indicated. It was observed that since the invoices submitted by the appellant to support the capacity of the furnace did not mention specifically a capacity of these furnaces, the Commissioner of Central Excise fixed provisionally the capacity as 3 m.t. + 3 m.t. Thereafter a team consisting of Central Excise Officers and a technical expert visited the factory of the appellant and took measurement of the relevant parameters. Since some mistake had crept in regarding the parameters another team was sent who visited the factory of the appellant on 26.1.1998 on the basis of the physical verification of the parameters, the annual capacity of the two furnaces was determined as 4 m.t. and 3.03 m.t. Being aggrieved with this fixation the appellants moved this Tribunal. This Tribunal under its Order -in -Appeal No. A/385 -387/98 -NB dt. 13.4.1998 set aside the order of the Commissioner fixing the capacity of the furnace as 4 m.t. and 3.03 m.t. and remanded the case for de novo adjudication with the direction to grant personal hearing to the party to represent their case by furnishing their annual figures and also passing speaking order. In pursuance of this order, the Commissioner passed the impugned order. About the direction of this Tribunal, the Commissioner observed

(2.) SHRI R. Santhanam, Ld. Counsel appears for the appellants and submits that the impugned order is liable to be set aside and quashed and declared Hottest in law in so far as it relates to non -determination of duty liability based on actual production under Section 3A(4) and (5) of the Act; that the impugned order must necessarily have been preceded by a SCN and an opportunity of hearing being provided; that the Ld. Commissioner ought to have followed Section 3A(4) and (5) of the Central Excise Act and should have, on his own, worked out the amount of duty liability based on actual production; that the Ld. Commissioner seeks to enforce imaginary demand of duty liability based on his order of production capacity worked out without any basis or justification; that the appellant cannot afford to pay imaginary sums unrelated to actual production and clearances; that statute mandatorily required an opportunity of personal hearing; that the Ld. Commissioner must have taken into account actual production and clearances and ought to have re -determined duty liability; that the Ld. Commissioner ought to have re -worked the duty liability under Section 3A(4) and (5) that the impugned order needs to be set aside as the Ld. Commissioner was directed by this Tribunal to determine the duty liability based on actual production and clearances under Section 3A(4) and (5) of the Central Excise Act. The Counsel submitted that the Hon'ble Supreme Court in their order dt. 21.4.1998 had ruled

(3.) HEARD the submissions of both the sides. We find that the impugned order is a conclusion of the remand order of this Tribunal. In the remand order it was clearly directed that the figures of production of the appellants should be taken into consideration for determining the duty liability of the appellants. We note that these directions were clear and therefore, the appellants should have been asked to produce the figures of actual production and those figures should have been examined and thereafter duty liability should have been re -determined. However, the impugned order does not show anything about examination of the figures of actual production. On the contrary we note that the Ld. Commissioner has observed