TMI Blog2016 (1) TMI 521X X X X Extracts X X X X X X X X Extracts X X X X ..... he precedent decision of this Tribunal and observation made by the learned Commissioner (Appeals) in the impugned order, we do not find any infirmity in the impugned order. - Decided against the Revenue. - Excise Appeal No. 864 of 2007 with CO No. 157 of 2007 - Final Order No. 53521/2015 - Dated:- 18-11-2015 - Shri Ashok Jindal, Member (Judicial) And Shri B. Ravichandran, Member (Technical) For the Petitioner : Ms. Neha Garg, Authorized Representative (DR) For the Respondent : Shri Amit Jain, Advocate. ORDER Per. Ashok Jindal :- Revenue is in appeal against the impugned order wherein the learned Commissioner (Appeals) allowed the benefit of exemption Notification No. 49-50/2003-CE dated 10/06/2003 holding that the respondent had undertaken substantial expansion by way of installed capacity by not less than 25% on or after 7th January, 2003. 2. The facts of the case are that the respondent were engaged in manufacture of Paper Board and Spiral Paper Tube. The respondent informed to the Department on 29/3/2004 that they have undertaken substantial expansion of installed capacity in respect of Paper Board and shall be availing benefit of exemption under N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no authorization has been filed by the Revenue to file this appeal as per Section 35B (2) of the Central Excise Act, 1944. On merits, he submits that issue is squarely covered by the decision of this Tribunal in the case of Tirupati LPG Industries Ltd. vs. CCE, Meerut - I reported in 2015 (324) E.L.T. 201 (Tri. - Del.). Therefore, the impugned order is to be upheld. In that case also, the assessee is having two units in the same factory i.e. conductor unit and LPG Cylinder unit and this Tribunal has held that the installed capacity of the each unit is to be considered separately and the same has been considered by this Tribunal in that case. Therefore, the impugned order is to be upheld. 5. Heard the parties considered the submissions. 6. The contention of the learned AR is that the production capacity of the both the units are to be counted as one. As in the Spiral Paper Tube unit, the substantial expansion has not been taken, therefore, the respondent is not entitled for the benefit of the notification. We have seen that prior to substantial expansion the Paper Board unit was having installed capacity of 15 TPD and Spiral Paper Tube unit was having installed capacity of 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment is time barred in terms of Section 35E of the Central Excise Act, 1944. In this regard, the party also quoted the provisions of Section 35E verbatim. They added that since no justifiable reasons have been brought forth in the Order in Review passed by the Commissioner as also the appeal filed by the Department, for reviewing the order within the period of six months, the appeal filed against the Order-in-Original No. 18/Addl./Commr./M-II/2005 18/08/05 is beyond the period specified under the Act as impugned Order-in-Original was passed on 18/08/2005, whereas authorization for filing appeal against this order was made on 11/08/2006 by the Commissioner i.e. after a period of more than 11 months from the date of Order-in-Original. (iii) They also averred that benefit of Notification claimed by them is in accordance with law as the fact of substantial expansion carried out by them is undisputed in so far as Paper Board is concerned. The Department has not refuted at any stage the material fact that as a whole overall installed capacity of their unit has increased by more than 25% including Spiral Paper Tube Section also. Since they opted to pay duty on Spiral Paper Tube ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to prove that a factory is distinguishable from an industrial unit. Further, as a whole overall installed capacity of their unit has increased by more than 25% including Spiral Paper Tube Section also, they are otherwise eligible for exemption even considering their Paper Board unit and Spiral Paper Tube Unit as one industrial unit. They also relied the following case laws to support their contention that if overall capacity has been increased by 25% or more than there is no need to increase in installed capacity of all the Divisions/Sections : (a) CCE vs. Monabari Tea Estate - 2003 (154) E.L.T. 230 ; (b) CCE vs. Assam Polyester Co-op Society Ltd. - 2003 (162) E.L.T. 350 ; (c) CCE vs. Hindustan Coca Cola Beverages Ltd. - 2004 (169) E.L.T. 154 ; (d) CCE vs. MKB (Asia) Pvt. Ltd. - 2003 (158) E.L.T. 616 ; (e) CCE vs. Hindustan Coca Cola Beverages Ltd. - 2005 (186) E.L.T. 242 ; (f) CCE vs. Dorria Tea Estate - 2003 (156) E.L.T. 999. The party, therefore, contended that the appeal filed by the Department is contrary to the above judgments and binding Board Circular is therefore liable to be rejected. I have gone through the grounds of app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der under sub-Section (1) or sub-Section (2) is to be made by the Commissioner, passing the review order, where it is possible, within a period of six months, but not beyond a period of one year, from the date of the decision or order of the adjudicating authority. The word used by the legislature are where it is possible to do so. So the order of review is not to be made mandatorily in six months as contended by the party. Therefore, in the instant case review order is passed within the normal period of one year as stipulated in Section 35E. Therefore, on this count, partys contention is not tenable. I observe that the facts which remain uncontroverted in the instant case are that : (i) The party has carried out substantial expansion after 7th day of January, 2003. Further, the installed capacity of the unit prior to 07/01/2003 was 15 TPD or 4500 TPA in respect of Paper Board and 05 TPD or 1500 TPA in respect of Spiral Paper Tube. The party claimed that after expansion of the unit the installed capacity of Paper Board has increased from 15 TPD to 25 TPD. This claim of the party is certified by the experts of Department of Paper Technology, IIT, Roorkee vide their re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case, going by either of the Certificates, the increase is more than 25%, we are of the view that the benefit of the Notification in question has been rightly extended to the respondents. Accordingly, the Revenue s appeal is rejected. (v) CCE vs. MKB (Asia) Pvt. Ltd. reported in 2003 (158) E.L.T. 616, the Hon ble CESTAT had held that the Revenue s main grievance is that the appellate authority has taken into consideration the overall increase in the installed capacity of the unit but has not considered the increase in the separate key area/section of the unit. It is held that overall increase of 25% in the installed capacity of the unit but has not considered the increase in the separate key area/section of the unit. It is held that overall increase of 25% in the installed capacity is required for the availment of benefit of Notification No. 33/99-CE. Increase in separate key area/section is not required. Revenue appeal is rejected. (vi) CCE vs. Hindustan Coca Cola Beverages Ltd. reported in 2005 (186) E.L.T. 242, wherein the Hon ble CESTAT had held that Expansion of Notification No. 33/99-CE - Bottle washer and filter installed in aerated water bottling plant Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , then benefit of said Notification (i.e. 49 and 50/2003) would not be available to Motor Vehicles manufactured in such assembly/production lines. This clarification of the Board also supports the view that industrial unit is other than a factory. Here, it would be pertinent to mention that sun set clause has been extended upto 31st March, 2010 by virtue of Notification No. 38/2006-CE dated 02/08/2006. Therefore, the partys averment that their Paper Board Section is a separate industrial unit and as such benefit of exemption is rightly allowed to them is strongly in their favour. However, as per the ratio of decisions discussed at Sl. No. (ii) and (vii) (supra), I find that benefit of exemption is otherwise also admissible to them in as much as the evidences available on record i.e. the report of the experts of Department of Paper Technology, IIT, Roorkee in their report dated 22/03/2005 have also certified that there is an increase of installed capacity of the partys plant is more than 25%. I, therefore, conclude that in view of the factual position as narrated above in context of interpretation of Notification No. 49/2003-CE and 50/2003-CE both dated 10/06/2003 vis-`-vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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