- (1.) This reference is made by the Commissioner of Central Excise, Jaipur-I, seeking a direction from this Court to the Customs, Excise and Gold (Control) Appellate Tribunal to state and refer following question to this Court under Section 35 of the Central Excise Act, 1944:- "Whether the redetermination of Annual Capacity of Production in view of the facts that the assessee had suppressed the actual production capacity at the time of fixing annual capacity production will tantamount to review of its own order by the Commissioner?"
(2.) This court vide order dated 17.02.2003 issued notice to the respondents as to why the respondent no.2 the Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi, (for short, 'the CEGAT') should not be directed to refer the aforesaid question for the opinion of this Court, and in pursuance thereof the respondents have filed reply.
(3.) Facts giving rise to this reference case are that respondent no.1 M/s Arvind Refractories Private Limited, F-629, RIICO Industrial Areas, Bhiwadi, District Alwar, (hereinafter shall be referred to as 'the assessee') is engaged in manufacturing of non-alloys M.S. Ingots falling under the Central Excise Tariff Heading No.7206.90. In terms of the provisions of Section 3A of the Central Excise Act, 1944 (for short, 'the Act of 1944') and Rule 96ZO of the Central Excise Rules, 1944 (for short, 'the Rules of 1944'), the central excise duty is chargeable on the goods manufactured by the assessee on the basis of annual capacity of production induction furnace. The annual capacity of production, which is based on total capacity of furnace, is determined in terms of Induction Furnace Annual Capacity Determination Rules, 1997 (for short, 'the Rules of 1997'). The assessee vide letter dated 18.08.1997 declared that they were having one furnace of ABB Type ITM4/1500. They also furnished copy of certificate issued by M/s ABB dated 12.08.1997, in support of their claim regarding furnace/crucible capacity for manufacturer of the furnace. Vide letter dated 29.09.1997, total capacity of the furnace was determined as 3MT and annual capacity of production was determined provisionally as 9600 MT (TCF as 3.00 MT) and in terms of Rule 3(1) of the Rules of 1997, the annual capacity of production was finalized as 9600 MT vide letter dated 25.09.1998.;