TMI Blog2010 (7) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... 713-1714/2010-WZB/AHD - Dated:- 15-7-2010 - Ms. Archana Wadhwa, Shri S.K. Gaule, JJ. REPRESENTED BY : S/Shri C.S. Lodha with V.S. Sejpal, Advocates, for the Appellant. Shri R.S. Saxena, JDR, for the Respondent. [Order per : S.K. Gaule, Member (T)]. Heard both sides. 2. Revenue is in appeal against the Commissioner (Appeals) Order No. 338 to 353/2008/Commr. (A)/Raj dated12-12-2008. 3. Briefly stated facts of the case are that the respondent are engaged in the manufacture of excisable goods such as detergent bars/detergent powder and speckles. The assessee-respondent set up their unit in Kutch district of Gujarat after 31-7-2001 for availing benefit of area based exemption Notification No. 39/2001-C.E., dated 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 Oct - 07 18,422,712/- 13 Nov - 07 14,444,534/- 14 Dec - 07 17,174,956/- 15 Jan - 08 19,007,463/- 16 Apr - 08 15,529,132/- Total 225,636,105/- 3.1 The lower adjudicating authority found that 50% of the entire production of detergent bars was not admissible on the ground that the respondent have installed one silo, one vibrator sieve, one weigh dropper, vapor separator, cyclone and sigma mixture for manufacture of detergent bars which has influenced the production and accordingly the lower adjudicating authority has proportionately rejected the refund claim. Lower adjudicating authority has also rejected the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letter F. No. 110/21/2006-CX. 3, dated10-7-2008. 5. The respondent filed counter in the style of cross-objection barring the issue relating to refund for the month of April 2008, for the period after issuance of amending Notification No. 16/2008-C.E., dated28-3-2008. They have taken preliminary objection that as per Section 35B of Central Excise Act, 1944, 16 appeals should have been filed since learned Commissioner (Appeals) in his impugned order has decided appeals against 16 orders-in-original. The contention of the appellant is that in the case of first issue of restricting 50% of refund claim on the ground of new capital goods installed after31-12-2005learned Commissioner (Appeals) has given detailed findings in para 11.1 to 11.5. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ack from its assurance to the detriment of the manufacturer-assessees. 5.1 We have considered the submissions and perused the records. The respondents are eligible for the benefit of Notification No. 39/2001-C.E., dated31-7-2001, is not in dispute. The appellant have only challenged the Ld. Commissioner Appeals order, setting aside the lower adjudicating authority s order to the extent of denial of 50% refund on the production of detergent bars in case of order No. 91/2008, dated12-6-2008. The contention of the appellant is that the respondent have installed one silo, one vibrator sieve, one weigh dropper, vapor separator, cyclone and sigma mixture for manufacture of detergent bars after 31-12-2005 and installation of one sigma mixture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lodder, Stumpers and Wrapping Machines. Since there are no addition to these three equipments, the final installed/production capacity remains at the original installed capacity of 75000 MTs per annum as on31-12-2005. I find that Lower Authority vide his impugned orders have not adduced any findings to counter the appellants above arguments and the Chartered Engineer certificate. Further, I find that the basic use of installed machineries is to handle the problem of storage of raw materials, increase efficiency of the installed machinery and to facilitate easy change in formulation. I also find that it is a fact that there is no addition to the already installed capacity i.e. 75,000 Metric Tones and the said fact has not been refuted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejoinder the respondent relied upon the Hon ble Gujarat High Court s judgment in the case of Sal Steel Limited Anr. v.Unionof India Ors. - 2010-TIOL-112-HC-AHM-CX. = 2010 (260) E.L.T. 185 (Guj.). The Hon ble Gujarat High Court has held as under : 36. Hence, on application of the law in the form of provisions of Sections 5A and 38A of the Act as well as the general principles relating to promissory estoppels it becomes clear that even if one were to uphold the powers of the Central Government to issue a notification in exercise of powers under Section 5A of the Act, it would not be possible to uphold the said exercise in so far as impugned Notification No. 16/2008-C.E., dated 27-3-2008 and Notification No. 33/2008-C.E., dated 10-6-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
