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2016 (8) TMI 841 - AT - Central ExciseNotification No.32/99-CE dated 08.07.1999 - eligibility for benefit - carrying out more than 25% expansion in the installed capacity of plywood production as prescribed in the exemption notification - no increase in the installed & licenced capacity in the old wood based industries of Nagaland after 30.10.2002 - Held that:- in view of the clarification dated 15.10.2009 discussed by the Adjudicating authority it cannot be said that no expansion in the installed capacity could be enhanced by the Respondent. There could be various stages by which installed capacities could be enhanced by the appellant so long as it remains within the licenced capacity decided by State Forest department in the light of Supreme Court s judgement dated 15.01.1998. There is also no requirement under Notification No.32/99-CE dated 08.07.1999 that licensed capacity fixed by State forest department has to be taken into consideration while allowing expansion and that appellant should in one go install all machinery required to cater to the licensed capacity sanctioned. Notification No.32/99-CE dated 08.07.1999 - eligibility for benefit - Chartered Engineer vide his report dated 17.05.2005 has not taken veneer production into consideration while arriving at more than 25% expansion in installed capacity - Held that:- Adjudicating Authority further justified the expansion by not only based on a Chartered Engineer s Certificate dated 17.05.2005, but also relied upon a report of National Institute of Technology Agartala (A Central Government Institute). Certification given by two experts cannot be brushed aside without taking any other opinion of an expert as held by various judicial pronouncements relied upon by the Respondent. No evidence has been brought on records in the review order that any other expert s opinion was taken by the Department to counter the expert opinions obtained by the Respondent. In the absence of any such expert opinion obtained by the department it cannot be appreciated that quantity of veneer production should also be taken into consideration while determining the expansion undertaken. CBEC also while issuing a clarification under F.No.354/08/98-TRU dated 09.07.1999 opined that in case of doubt the Central Excise Officers may consult department of Industries of State Govt. for the purpose of 25% expansion in installed capacity, etc. Notification No.32/99-CE dated 08.07.1999 - eligibility for benefit - Adjudicating authority has not enquired into the efficiency of the transformer and whether transformer of 1250 KVA will give 100% output - original ground plan showing list of plant & machineries before expansion carried out, could have been called by the Adjudicating authority - Held that:- it has not been amplified by the department as to how these verifications could have helped in establishing that more than 25% expansion in installed capacity has not been done. At the same time these suspicions and a separate expert contrary opinion could have been raised by the department to review the order dated 07.06.2005 passed by the jurisdictional DC, CEx, Jorhat allowing the benefit of Notification No.32/99-CE dated 08.07.1999. In the absence of Review of order dated 07.06.2005 the same has become final on admissibility of this exemption to the Respondent. - Decided against the Revenue
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