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2016 (2) TMI 146 - AT - Central ExciseArea based exemption - Denial of exemption under notification no.50/2003-CE dated 10.06.2003 - appellant has wrongly mentioned their installed capacity as 30000 Mts. in certain documents - duty demand along with interest and the penalty - Held that:- In this case although the appellant sought proposed annual capacity in the year 1995-96 to 30,-000 MT p.a. but the installed capacity was only 26400 pm. The progress report filed by the appellant for the period June, 2003 with IFCI, shows 5400 MT/PA by way of expansion from 21000 MT to 26400 MT. We also find that audit report by the departmental officers clearly indicates that the licensed capacity and installed capacity of the appellant was 30,000 MT p.a. and 26400 MT. respectively. The letter dated 17.07.2001 issued by the IFCI supplied by CA also proposed that the installed capacity prior to October, 2003 was 26400 MT. We also observe that the ld. Commissioner (Appeals) in another proceedings also held that the installed capacity prior to extension took place in the month of October, 2003 was 26400 MT. and the said order has been accepted by the department. In these set of facts, we also hold that prior to October, 2003 when substantial expansion took place in the factory premises of the appellant the installed capacity was 26400 MT p.m. The installed capacity was increased to 33000 MTs in the month of October, 2003, which is substantial expansion i.e. more than 25% of the installed capacity. In that circumstances, the appellant is entitled for the benefit of the duty free under exemption notification no.50/2003-CE dated 10.06.2003. Therefore, the duty cannot be demanded from the appellant. - Decided in favour of assessee.
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