ORDER
V.K. Ashtana, Member (T)
1. To hear this appeal, the appellants are required to deposit a sum of Rs. 99,00,005/- plus interest at 18%. Out of this the appellants have already paid Rs. 97,13,335/- and interest amounting to Rs. 4,13,386/-. The appellant has been disputing the demand of Rs. 8,12,784/-.
2. The fact of the case briefly are that the Office of the Commissioner vide letter dated 31-3-1998 has informed the appellants that the Commissioner has finally fixed the annual capacity production for their Induction Furnace Unit as 9.5 M.T. with effect from 1-9-1997 to 31-3-1998 and they have demanded the said duty and interest. Aggrieved by this the appellant have come in appeal.
3. Heard learned Advocate Shri B.V. Kumar for the appellants and learned JDR, Shri S. Kannan for the department.
4. As the matter lies on a short compass, with the consent of both sides we proceed to take up the main appeal itself after granting waiver for the balance amount and stay of recovery of the duties etc. involved.
5. We find that the annual capacity was determined 3 times in this case. Initially it was their declaration dated 27-8-1997 for 9.5 M.Ts was accepted by the department provisionally.
6. At this point the learned JDR interjected that 9.5 MTs as annual capacity of production appears to be arithmetically wrong and, therefore, this needs to be factually verified by the department.
7. In the second instance, the annual production capacity was finally determined vide letter dated 3-9-1997, wherein, the total capacity has been reduced to 8.75 MT. Even during this period a number of correspondence have been exchanged between the appellant and the department on this issue. Thereafter, the Central Excise officers visited the appellants factory in September, 1997 along with some experts from local Engineering College from Hosur and on whose expert advice presumably the department vide the Commissioner’s order communicated the figure to be 9.5 MT for the period mentioned above. As the appellants were aggrieved against this determination, they did two things :-
(a) They procured a copy of the expert advice from the said Engineering College and which showed according to them that the capacity of the furnace taken together was 8.53 MT and
(b) they paid the aforementioned amounts on the basis of this capacity ascertained from these body of experts along with the interests thereon, the amounts totalling as mentioned above.
8. Therefore, the short point for consideration is as per the appellant, and learned Advocate fairly concedes, that the correct and objective capacity should be 8.53 MTs, whereas, according to the department as stated in the impugned order the capacity is 9.5. MTs. It is for our consideration as to what should be the resolution of this dispute.
9. We have carefully considered the arguments on both sides and the case records. In another case this very Tribunal in the case of Saravana Alloy Steels (P) Ltd. vide Final Order No. S/569/98 1224/98, dated 26-6-1998 1998 (102) E.L.T. 668 (Tribunal) had held that the order in the form of impugned letter was an order passed under Sub-section (2) of Section 3A of the Central Excise Act and was, therefore, appealable under the Central Excise Act. Applying the same ratio, we proceed to consider the impugned order is also as an appealable order and, therefore, the appellants appeal is fit for consideration.
10. From a perusal of the impugned order, we find the following :-
(a) The order is not signed by the learned Commissioner who is the only prescribed authority under law to pass such an order under Section 3A(2).
(b) That despite the fact that the experts visited the appellants unit on the initiative of and accompanied by the Central Excise officers, there is no discussion of the results of this expert inspection. No report is alluded to in the impugned order. Unfortunately the appellants had to themselves somehow get a copy of the technical report from the institution.
(c) The appellants in their communications had althrough been agitating that the smallest induction furnace of 1.5 MT has been made operational only after a specified period and for certain period they are entitled to abatement in terms of Rule 96ZO(2) of the Central Excise Rules. This contention of the appellants is also not considered in the impugned order.
11. In view of these infirmities in the impugned order, we, find that the order is totally a non-speaking order. The matter is, therefore, remanded to the learned Commissioner for re-consideration of the matter to the extent that the appellants had already conceded 8.53 MTs capacity determination. The learned Commissioner shall restrict this examination to the question of the difference between this figure and the figure of 9.5 MTs contained in the impugned order. Secondly, he shall also consider and pass speaking order on the appellant’s contention regarding abatements available to them under Rule 96ZO(2). While doing so, the appellant shall be supplied with copies of any technical/expert opinion on which the department relies. They shall be heard, at the time the matter is considered de novo.
12. The impugned order is accordingly set aside and the matter remanded for de novo consideration for this limited aspect as described above. In the meantime, the appellants shall continue to pay duty at the current conceded capacity of 8.53 MTs till the matter is finally disposed of in remand.