- (1.) The petitioner-Company is engaged in the manufacture and sale of M.S. Ingots falling under Central Excise Tariff Heading 7206.90. The duty is chargeable to the petitioner-Company in terms of Section 3A of the Central Excise Act 1944, read with Rules framed therein known as Induction Furnance Annual Capacity Determination Rules, 1997 (hereinafter referred to as the Rules') on the basis of annual production capacity of the Induction Furnance Unit. The petitioner filed declaration in respect of the furnance along with a certificate dated 7-9-1997 of the Chartered Engineer claiming therein that the capacity of the furnance cannot exceed 2.6 metric tonnes because they have sanctioned load of 1300 KW electricity only, which was insufficient for utilisation of the full capacity of the furnance as the load required for that purpose was 1600 KW. The Commissioner vide order dated 14-10-1997 determined the annual production capacity of the furnance at 3.2 MT on the basis of the capacity of the induction furnance recorded in the invoice of the supplier of the furnance. The said order was challenged by the assessee-petitioner before the Tribunal and the case was sent back to the Commissioner for de novo consideration after affording an opportunity of hearing to the petitioner. After remand the adjudicating authority, i.e., Commissioner vide his order dated 5-12-2000 again determined the total capacity of the furnance installed in the factory of the assessee at 3.2 MT by applying the formula as provided under Rule 3(3) of the Rules.
(2.) The assessee filed an appeal before the Tribunal challenging the above said order of adjudication by the Commissioner. However, the said appeal of the petitioner was rejected vide order dated 3-5-2002 of the Tribunal. The petitioner has filed the present reference petition under Section 35(H)(1) of the Central Excise Act, 1944 praying before this Court to direct the Tribunal to send the statement of facts of the case and refer the following question of law which is said to have arisen out of the order of the Tribunal dated 3-5-2002 : "Whether the learned Tribunal, respondent No.1 was justified in rejecting the plea of the petitioner that the provisions of Rule 3(2) of Induction Furnance Annual Capacity Determination Rule, 1997, are not attracted in the present case in view of the fact that the capacity of the furnance was reduced to 2.6 MT?"
(3.) Mr. Jagmohan Bansal, learned Counsel for the petitioner has vehemently argued that the respondents have no authority in law to determine the capacity of the furnance at 3.2 MT ignoring the sanctioned power load and the certificate of the Chartered Engineer, since the technical parameters for determining capacity by making proper verification and measurement of the production and capacity thereof with reference to the furnance, cannot be ignored. He has further argued that the respondents-authorities ought to have adopted the capacity at 2.6 MT and worked out the duty liability on that basis, as per the formula, which he has failed to do and, hence, the question of law referred to above does arise in the present case.;