TMI Blog2009 (8) TMI 1068X X X X Extracts X X X X X X X X Extracts X X X X ..... of Tribunal s order of remand dated 9-4-02 and also involve common issues and therefore, being dealt with by this common order. 2. Heard both sides. 3.1 Relevant facts, in brief, in Appeal No. E/3308 are that the appellant filed a letter dated 3-5-01 declaring the value of investment of plant and machinery as Rs. 2,42,53,549/- supported by a certificate of chartered accountant and claimed the benefit of compounded levy scheme in terms of Notification No. 16/01 N.T. dated 30-4-01. Subsequently, in terms of Notification No. 32/01 N.T. dated 28-6-01 effective from 1-7-01 as amended by Notification No. 41/2001 dated 21-9-01 intimated the value of investment on plant and machinery as Rs. 2,83,98,770/- again supported by the certificate from the same Chartered Accountant. The value of plant and machinery as per the report of the Cost Accountant appointed by the Department was Rs. 3,73,69,369/-. The Department held that the value of plant and machinery was in excess of Rs. 3 crores which was the maximum limit for extending the benefit claimed under the above scheme and it was denied. When the matter came before the Tribunal, the order was set aside and the matter was remanded for fres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent dated 20-9-01 by Notification No. 41/01. The inclusion of value of DG sets, transformers and air compressors, effluent treatment plant by the Cost Accountant who has been appointed by the Department is wrong. He relied on the decision of the Tribunal in the case of Ahmedabad Chemicals Pvt. Ltd. v. CCE, Baroda [1984 (16) E.L.T. 560] which is in the context of interpretation of Notification No. 89/79 following the earlier decision in the context of Notification No. 176/77 held that the value of certain items need not be included in determining the value of plant and machinery. He also relied on the decision of Tribunal in the case of K.B.I.C.C.F. Ltd. v. CCE [1990 (47) E.L.T. 274 (Tri.)] in which Tribunal, interpreting Notification Nos. 73/83 and 75/88, held that the value of certain goods should be excluded for the purpose of determining the value of plant and machinery. 4.2 He also submits that the Accounting Standard (AS 10) method of computing value of plant and machinery, even if applied should be applied only for the period from 21-9-01 when the amendment was brought into force and not for earlier period and at any rate not for the periods from 1-5-01 to 30-6-01 when Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hinery for the purpose of extending the benefit claimed by them. And the certificate produced by them was clearly in terms of said standard. 6.1 Learned DR submits that the normal duty liability is based on the actual production and clearances of the appellants. By opting for the special scheme, the burden is on the assessee to prove that they fulfilled the conditions. The Notification No. 16/01 and the later Notification No. 32/01 do not merely provide for production of certificate of Cost accountant/Chartered Accountant about the value of plant and machinery. It empowers the Commissioner to further investigate the matter. The eligibility limit does not depend upon the purchase value of machinery; it depends up on the value of investment on plant and machinery (installed in the factory); the value of plant and machinery installed is required to be included whether they are being used or not used, whether they are working or not working. 6.2 He also submits that the Commissioner was considering the matter afresh in the light of the direction of the Tribunal; the appellants have relied on the certificates of experts; therefore, it became necessary to appoint another expert to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ructions : (b) In calculating the value of plant and machinery, the following shall be excluded, namely :- (i) The cost of equipments such as tools, jigs, dies, moulds and spare parts for maintenance and the cost of consumable stores; (ii) The cost of installation of plant and machinery; (iii) The cost of research and development equipment and pollution control equipment; (iv) The cost of generation sets and extra transformer installed by the undertaking as per the regulations of the State Electricity Board; (v) The bank charges and service charges paid to the National Small Industries Corporation or the State Small Industries Corporation; (vi) The cost involved in procurement or installation of cables, wiring, bus bars, electrical control panels (not those mounted on individual machines), oil circuit breakers or miniature circuit breakers which are necessarily to be used for providing electrical power to the plant and machinery or for safety measures; (vii) The cost of gas producer plants; (viii) Transportation charges (excluding of sales-tax and excise) for indigenous machinery from the place of manufacturing to the site of the factory; (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cost Accountant. The Commissioner of Central Excise may require any such documentary evidence as he considers appropriate in respect of such original value before granting the application. 8.2 If any additional plant and machinery is installed by the independent textile processor at any point of time, he shall intimate the same to the Commissioner of Central Excise within seven days of such installation and the original value of investment in plant and machinery together with the original value of investment in such additional plant and machinery shall not exceed three crore rupees. Where such original value of investment exceeds the limit of three crore rupees, the provisions of this notification shall not apply from the first day of the month in which such investment exceeded the said limit of three crore rupees. 8.6 The provisions of this notification shall apply to the said goods which are manufactured or produced on or after the 1st day of May, 2001. Notification No. 32/01 was further amended by Notification No. 41/01 which reads as under :- In exercise of the powers conferred by Rule 15 of the Central Excise (No. 2) Rules, 2001, the Central Government, being satisf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are for excluding the value of items like DG sets compressors, effluent treatment plant machinery and these claim are merely based on the guidelines of the Central Government dated 10-12-97. We are not inclined to agree that the said guidelines are relevant for the purpose of interpreting this notification. 7.7 The decision of the Tribunal in the case of Ahmedabad Chemicals Pvt. Ltd. and K.B.I.C.C.F. Ltd. relate to interpretation of Notification Nos. 176/77, 89/79, 73/83 and 75/88 and the wording of said notifications are not the same as in the case of present notifications. At any rate, during the period when the above notifications were in force, there was no stipulation of adopting AS 10 norms for valuation of plant and machinery as prescribed in respect of present notification. 8.1 Learned advocate for the appellant in Shri Ganesh Texfab has also submitted that the appellants are seriously contesting the report of Cost Accountant. It is not mere contention about the veracity of the evidential value of the certificate that is referred by contesting the issue regarding the valuation of machinery. Such a contention should be revealed from the records in relation to the valuati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in terms of Section 14A. We find that the Commissioner was considering the matter afresh in the light of the direction of the Tribunal; the appellants have relied on the certificates of experts; therefore, we agree with the contention of revenue that it became necessary to appoint another expert to look into the value of plant and machinery. In the given circumstances the Commissioner, instead of deciding on his own the veracity of the views of the experts relied upon by the appellants, has rightly taken the view of another expert. Whether the said expert was appointed in terms of Section 14A or otherwise is immaterial. The submissions that the letter of the Deputy Commissioner was not made available are also not significantly relevant. 8.5 Further, it is to be noticed that the Commissioner was undertaking de novo proceeding and the Tribunal has granted an opportunity to the appellant to produce evidence before the Commissioner. The Commissioner has chosen to get the valuation done using the Cost Accountant and made available the certificate of Cost Accountant to the appellants and they were also permitted to cross examine the Cost Accountant who has given the certificate. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification does not stop at this stage. It further states that the Commissioner of Central Excise may require any such documentary evidence as it considers appropriate in respect of the original value. Merely because the party has chosen to furnish the certificate from Chartered Accountant that may not be final word as to the valuation of plant and machinery. Obviously, such documentary evidence has to be in the form of certificate by the Chartered Accountant or Cost Accountant. Being so, we find no substance in the contention sought to be raised on this regard. 10. In view of the above, we hold that the decision of the Commissioner that the appellants in each case have crossed eligibility limit of 3 crores with respect to the value of plant and machinery and, therefore, are not eligible for exemption claimed is legally correct and sustainable. However, we agree with the learned Advocate in the case of Sulzar Processors Ltd. that in the facts and circumstances of the case, no penalty is warranted. 11. Therefore, (a) Appeal of Shri Ganesh Texfab Ltd. is rejected. (b) Appeal of Sulzar Processors Ltd. is rejected in so far as it relates to demand of duty and interest. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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