ORDER
V.K. Ashtana, Member
1. To consider this appeal appellants are required to pre-deposit a sum of Rs. 7,57,641.00 confirmed vide Order-in-Original No. 1/98 (Tech.) dt 30.11.98 passed by Commissioner of Central Excise with respect to Annual Capacity Determination of Induction Furnace under Section 3A of the Act. The period of dispute is from 1.9.97 to 31.3.98.
2. Heard Shri S.D. Sankaran, Ld. Consultant for the appellants and Shri S. Kannan, Ld. DR.
3. Learned Consultant submits a calculation sheet giving counter calculations of the duty involved vis-a-vis calculations contained in the order impugned. Ld. Consultant submits that the following mistakes have occurred in the calculations contained in the order impugned:
(a) Out of the abatements given for closure of unit for 7 days or more, he submits that whereas the actual closure for 79 days, the abatement has been given for 72 days only. This needs to be corrected.
(b) He submits that in the State of Kerala there is continuous peak hour power cut from 5.30 p.m. to 10.00 p.m. For the period involved, this works out to 33 working days and he claims abatement to this extent. If this is done, then the number of working days would be reduced from 133 to 100 days as indicated in the sheet. He submits that if the position at (a) and in this para are conceded, then whereas they have paid duty of Rs. 33,13,538, the duty payable would be only Rs. 26,72,263. Thus, he submits that there is no question of pre-deposit of any amount as they have already paid in excess to the tune of Rs. 6,72,283.
4. Learned Consultant also submits that in the calculations pertaining to the use of Electricity for manufacture, the abatement given for low tension loads in the factory are not factually correct whereas only low tension light point has been taken. There are 15 other low tension loads which are to be considered. This was worked out to total 244 Horse Power and if this is taken into consideration then the units used for actual manufacturing would be 25,98,743 instead of 31,82,879 units. Therefore, Ld. Consultant submits that the matter may be remanded for a de novo consideration on these factual presentations.
5. Heard Ld. DR who submits that the Commissioner had already taken into consideration whatever the date was available before him. This evidence is a new evidence which was not available before the Ld. Commissioner.
6. We have carefully considered the rival submissions and records of the case. We note that it is the claim of the Ld. Consultant that they have paid the duty in excess to the tune of Rs. 6.72 lakhs approx. Since the matter lies on a short compass and in view of this claim which is substantiated by detailed calculations though they are yet to be verified, we order waiver and stay in the matter and proceed to consider the main appeal itself.
7. On a careful consideration of the grounds of appeal, and the submissions made, we find that appellants have before us led certain evidences with respect to the total number of days for which the unit was closed during the period, the peak hour power cut duration, as well as the 15 point using low tension electricity as given both in the calculation sheet on record and submitted in court today. We find that thereafter using this evidence they have made certain calculations by which they claim that they have paid duty in excess to the tune of Rs. 6.72 lakhs instead of demands confirmed on them. These calculations are pertaining to various abatements which may be permissible. This matter is of details and facts on which recalculations are based need to be verified. Obviously, the Tribunal is not in a position to verify these details as well as the calculations. Therefore, we find that we have no other alternative but to set aside the order impugned and remand the matter to the original authority for de novo consideration of the matter including the claims made in these calculation sheet, a copy of which is attached with this order.
8. While reconsidering the matter on de novo basis, the Commissioner shall give an opportunity to the appellants to explain their case before him in personal hearing. He shall examine as to which of these abatements claimed are admissible in law. He shall also examine the calculation accuracies etc. The appeal succeeds by way of remand in the above terms.
CALCULATION FOR CENTRAL EXCISE APPEAL NO. E/STAY/164/99
INE/372/99
JUSTIFICATION NO. 1
4 M.T x 3200 = 12,800/12 x 7 months
(with no abatement)
= 7,466 Tons xRs.750.00
= Rs. 55,99,500.00
Total Days 212 days-
Abatement 79 days
= 133daysx6hrs.
= 798 hrs/24
Peak Hr. Power Cut = 33 days
= 133-33= 100 days
7466 Tons x 100 days/212 = 3,521.70 Tons
= 3,521.70 xRs. 750.00
Payable = Rs. 26,41,275.00
Paid = Rs. 33,13,538.00
Excess Paid = Rs. 6,72,263.00
________________________
JUSTIFICATION NO. 2
ACP = TCF x 3,200
= 4 x 3200
= 3200/365 = 8.76 x 100 days
= 876 x 4 tons
= 3,504 tons
_______________________
Therefore duty payable = Rs. 26,28,000.00
Duty paid = Rs. 33,13,538.00
Excess paid = Rs. 6,85,538.00
For the purpose of arriving the melt rate you have taken the data from the Journal in 1995 as 1 unit = 1.85 kg which is not practically possible. There arelot of criteria to face the production like, fluctuation in power, raw-material’s Specification, chemical composition etc., and we have confident enough to say we can produce with 1 unit power = 1 kg. only.
As per your calculation, 68.5 mts duration per batch, if so your ACP is should be7,673 batch per year calculation as follow
Total Minutes per year 60 mts x 24 hr x 365 days = 5,25,000 mts
1 Mt require for batch as per your calculation = 68.5 mts.
therefore ACP would be = 7673 batch.
As per 96 ZO the ACP comes 3200 batch only. Which is the practical one and which was finalised by your Technical Team. So your calculation of 68.5 per Batch is not practically possible.
L.T. LOAD DETAILS
The following L.T. Loads available in our factory which are not calculated for your calculation you have taken only Light Load only.
1. COIL Water Pump 2 Nos. (15 HP Each) 30H.P.
2. RAW Water Pump 3 Nos. (10 HP Each) 30H.P.
3. Cooling Tower Motor 10H.P.
4. Water Compressor 2 Nos. (5 HP Each) 10 H.P.
5. Air Compressor 5 H.P.
6. Distilled Water Pump 10 H.P.
7. Hydraulic Pump 10. H.P.
8. Emergency Motor 5. H.P.
9. Charging Motor 1 H.P.
10. Pollution Control Motor 40 H.P.
12. Crane
(A.) Hoist Motor 25 H.P.
(B.)LtMotor7H.P. 2 Nos. 14 H.P.
(C)CT Motor 2 H.P.
13. Bundling Machine 20 H.P.
14. Cutting Machine 20 H.P.
15. Man Cooler Motor 4 Nos. (Each 3 H.P.) 12 H.P.
Total 244 H.P.
244 H.P = 219.6 KW
Total Unit per day 20 hrs working = 219.6 x 20 hrs = 4392 unit per day
Total L.T. Unit for 133 days = 4392x133 = 5,84,136 units
Lighting Units = 8,311 units
Total Units = 5,92,447 units
For Pre heating = 6,41,250 units
Total Consumption as per your order = 38,32,440 units
Actual Unit for Manufacturing = 38, 32, 440 - 12,33,697
= 25,98,743 units.
You have omitted 5,84,136 units while your calculation in your order
Actual Power used for Melting = 25 98, 743 units not as you
mentioned in order 31,82,879 units
Abatement Details for 1997 & 1998
_____________________________________________________________________________________
FROM TO DAYS
_____________________________________________________________________________________
7.9.97 18.9.97 11 Days
7.10.97 14.10.97 7 Days
14.10.97 8.11.97 15 Days
24.11.97 1.12.97 7 Days
8.12.97 15.12.97 7 Days
1.1.98 9.1.98 8Days
29.1.98 5.2.99 7 Days
19.2.98 26.2.99 7 Days
10.3.98 20.3.99 10 Days
______________________________________________________________________________________
Total Closer Period : 79 Days