TMI Blog1997 (6) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... tisfied that it is necessary in the public interest so to do, hereby exempts cement falling under sub-heading No. 2502.20 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) and manufactured in a factory. (a) Using vertical shaft kiln with a licensed capacity not exceeding 200 tonnes per day or using rotary kiln with the licensed capacity not exceeding 300 tonnes per day from so much of the duty of the excise leviable thereon under the said Schedule as is in excess of the amount calculated at the rate of Rs. 115/- per tonne. (b) Provided that nothing contained in this notification shall apply to such cement in respect of which a manufacturer avail of the exemption contained in the notification of the Government of India i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which has to be taken into reckoning and not the licensing capacity of the factory. On a query from the Bench he fairly conceded that if the capacity of the kiln is taken into reckoning that would mean the limit up to which the clinker can be produced for the purpose of notification. He has pleaded inasmuch as the vertical shaft kiln installed in the appellants unit at a production capacity of the clinker not exceeding 200 tonnes per day, the appellants would be entitled to the benefit of the notification. On this point the learned Sr. Advocate was asked to enlighten the Bench as to the methodology for licensing the capacity both of the plant or factory and the kiln as such. He has pointed out that for the production of cement the commodi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e applied for expansion of the same and by reason of having that much capacity they would be automatically disqualified from the benefit of notification. This position is not controverted by the learned Sr. Advocate. 4. We have considered the pleas made by both the sides. We observe that the issue relates to the interpretation of the wordings of Notification 172/89. We observe that the appellants are manufacturers of cement and it is for the manufacture of cement that they had their capacity licensed and they got the enhancement of this capacity when they further went before the authorities. The capacity as is certified in terms of Industries (Development and Regulation) Act, 1951 is in respect of the commodity which is covered under this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed capacity as discussed in the earlier paragraphs is only with respect to the capacity of the factory to produce a particular commodity for which Government of India has accorded sanction under the Industries (Development and Regulation) Act, 1951. No provision has been shown to us nor any mechanism has been shown to be there for certifying the licenced capacity of a kiln under any provisions of law or any rules framed under any law for the purpose. The predecessor notifications also point out to only one thing, that is for the purpose of concession the parameters to be taken into consideration is the capacity of the factory to produce a particular product. The benefit as could be read from the parameters laid down is intended for smaller ..... X X X X Extracts X X X X X X X X Extracts X X X X
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