ORDER
Jyoti Balasundram:
1. For reasons recorded below we waived the pre-deposit of duty and proceed to hear the appeal itself with the consent of both sides.
2. The Commissioner of Central Excise has determined Annual Capacity of the appellants’ unit as 10016 m.t. for discharging duty liability in terms of Rule 3(4) of the Induction Furnace Annual Capacity Determination Rules 1997 w.e.f. 1.9.97. It is the submission of the appellants that the Commissioner has determined the furnace capacity on the basis of physical verification, which is not permissible under the Rules since the rules provide for determination on the basis of invoice of manufacturer/suppliers’ invoice and in the present case, the appellants had furnished the furnace manufacture’s invoice issued by M/s. Inductotherm(India)Ltd., Ahmedabad. They further submitted that although the furnace capacity is shown in the invoice as 3 m.t. the capacity should be taken as 2.5 m.t. They prayed that the capacity may be re-determined, on the basis of 2.5 m.t. furnace capacity.
3. The prayer is opposed by the Ld. SDR on the ground that the furnace manufacturer’s invoice is disputed by the appellants themselves and hence the Commissioner has rightly determined the capacity on the basis of physical verification which shows that the furnace capacity is 3.13 m.t.
4. We have carefully considered the rival submissions. The appellants are correct in their submission that the rules provide for determination of preduction capacity on the basis of the furnace manufacturer/supplier’s invoice. Since capacity as 3 m.t., the production capacity is to be determined on this basis. For this purpose, we set aside the impugned order and remand the case to the jurisdictional Commissioner for fresh determination of reduction capacity of the appellants on the basis of the invoice issued by M/s. Inductotherm(India) Ltd. The appellants contended that they have already paid duty on the basis of 3 m.t. furnace capacity and hence no further duty demand arises. This is also to be verified by the Commissioner. He shall pass fresh orders after extending reasonable opportunity of hearing to the appellants. The appeal is thus allowed by remand.