TMI Blog2015 (4) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... aimed to have been fabricated by the appellant in their factory. The Commissioner has chosen to rely upon the opinion of Professor Arun Kumar on the ground that he is an independent authority and his report is a later report and only a Chartered Engineer s certificate cannot wish away the expert s report . Since the Commissioner s conclusion is based on the expert opinion of Professor Arun Kumar, in our view, his cross examination by the appellant should have been permitted, as the report of Professor Arun Kumar is only an opinion whose correctness has to be tested by his cross examination. The Commissioner in the impugned order simply relies upon the IIT Professor report on the ground that it is a later report and he is an independent authority and therefore she has no reasons to doubt the same. But she does not discuss as to why the certificate given by the Chartered Engineer is not correct. - Impugned order is set aside - Decided in favour of assessee. - Excise Appeal Nos. 339 and 928 of 2006 alongwith Misc. Application Nos. 55489-55490 of 2014 - Final Order No. 51024-51025/2015 - Dated:- 26-3-2015 - Hon ble Shri Rakesh Kumar, Member (Technical) And Hon ble Shri S. K. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as resulted in increased in the installed capacity from 6060 per CRTs per day to 9030 CRTs per day i.e. from the earlier 20 lakhs CRTs to 30 lakhs CRTs per annum based on 330 working days in a year. Alongwith this letter, the appellant enclosed a certificate dated 25th September 2003 of M/s B.K. Arora and Associates, Chartered Engineers, certifying that the appellant have installed additional equipment the details of which are given in the certificate and by this their installed capacity has increased to 30 lakh CRTs per annum. 1.3 The Department thereafter conducted inquiry with the appellant s employees and also sought the technical opinion of Professor Arun Kumar of the Department of Electronics and Computer Engineering in the Indian Institute of Technology, Roorkee. Professor Arun Kumar visited the appellant s unit alongwith excise team and after inspecting the unit, submitted a report dated 23/09/04 to the Commissioner giving his conclusion that there is no change in the input block and output block and it appears that no capacity expansion has been carried out by the company. Based on this report, a show cause notice dated 24/9/04 was issued to the appellant company for de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how cause notice, that after completion of exercise of the substantial expansion, the necessary intimation had also been given to the District Industry Centre with request to issue the necessary certificate, but they have neither issued a certificate nor have inspected the unit, that immediately after completion of capacity expansion, necessary intimation was given to the Jurisdictional Assistant Commissioner, Central Excise, that the appellant claim of expansion of the installed capacity is doubted by the Department mainly on the basis of the report of Professor Arun Kumar of the Department of Electronics and Computer Science, IIT Roorkee, that a professor of Computer Sciences and Electronics is not competent to give opinion on the point as to whether a factory has undertaken substantial expansion of installed capacity or not, as it is a subject of Mechanical Engineering, that in his opinion, he has not refuted the Chartered Engineer s certificate, that in view of this, the impugned orders totally relying upon the opinion of Professor Arun Kumar, of the Department of Electronics and Computer Engineering, IIT Roorkee, is not correct, that the appellant have also submitted data sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ually increased. He also pleaded that from their percentage of capacity utilisation since 2000-2001 it is seen that they had excess capacity and in fact their capacity utilisation was constantly decreasing which also creates serious doubts about their claim of having increased the installed capacity. He cited the judgment of the Tribunal in the case of Rana Casting Ltd. vs. CCE, Meerut reported in 2010 (257) E.L.T. 104 (Tri. Del.) wherein, it has been held that though the words substantial expansion had not defined in the notification, these words indicate that in order to qualify for exemption there must be some expansion or addition of the plant and machinery which is substantial and which has resulted in 25% or more increase in installed capacity and increase in installed capacity by 25% or more is has not been achieved by minor modification in the machinery or increasing the efficiency of the manufacturing process, as if mere modification in manufacturing process and minor changer in machinery resulting in increased production is treated as substantial expansion , the word substantial expansion would become redundant. He emphasised that the appellant s unit, at the most, hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved that he could not find any facility for fabrication of the machinery which are claimed to have been fabricated by the appellant in their factory. The Commissioner has chosen to rely upon the opinion of Professor Arun Kumar on the ground that he is an independent authority and his report is a later report and only a Chartered Engineer s certificate cannot wish away the expert s report . In our view this conclusion is wrong as a Chartered Engineer is as much an expert as a Professor of IIT. Moreover, we find merit in the appellant s plea that a Professor of the Department of Electronics and Computer Science is not competent to give opinion on the question whether substantial expansion of installed capacity of production had been undertaken, which is a discipline of Mechanical Engineering. 8. In any case, since the Commissioner s conclusion is based on the expert opinion of Professor Arun Kumar, in our view, his cross examination by the appellant should have been permitted, as the report of Professor Arun Kumar is only an opinion whose correctness has to be tested by his cross examination. The Commissioner in the impugned order simply relies upon the IIT Professor report on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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