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2016 (3) TMI 996 - CESTAT NEW DELHI

2016 (3) TMI 996 - CESTAT NEW DELHI - 2016 (335) E.L.T. 292 (Tri. - Del.) - Benefit of Notification No.24/1991-CE dated 25.07.1991 and 5/1993-CE dated 28.02.1993 denied - validity of the certificate towards installed capacity of the factory - Held that:- In R.A. Cement Pvt. Ltd. (1999 (7) TMI 619 - CEGAT, NEW DELHI ) a similar set of facts were examined by the Tribunal. The assessee claimed certain concessions based on certificate issued by Director of Industries. Certain facts against the claim .....

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On careful consideration of submissions made by both the sides and the materials on record, we find that the impugned order is not sustainable. Accordingly, the same is set aside. - Decided in favour of assessee - Excise Appeal No. E/4034, 4035, 4036/2003-EX [DB] - Final Order No. 50842-50844/2016 - Dated:- 23-2-2016 - S. K. Mohanty, Member (Judicial) And B. Ravichandran, Member (Technical) For the Appellant : Shri. Ashutosh Upadhyay, Advocate For the Respondent : Shri. Govind Dixit, D.R. ORDER .....

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eed 2,20,000 Tons. The condition relevant to the present case to avail the said concession is that the installed capacity of the factory shall be certified by an officer not below the rank of Director of Industries in the State Government. Based on certain enquiry, proceedings were initiated against the appellant to deny the concessional rate of duty as above. After due process the case was adjudicated by the Original Authority vide order dated 04.09.2000. On appeal the Tribunal vide Final Order .....

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e the matter afresh in accordance with law 2. The case was re-adjudicated by the Commissioner of Central Excise, Indore. The Commissioner vide his order dated 23.09.2003 again denied the benefit of Notification and confirmed a demand of ₹ 6,22,02,982/-. He also imposed equal amount of penalty each on the appellant assessee; ₹ 20.00 Lacs penalty each on the Managing Director and the Director of the appellant assessee. Aggrieved by this order the appellants filed appeal before the Trib .....

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he CESTAT in this behalf relied upon the certificate issued by the Commissioner of Industries which had certified the installed capacity to be 1,94,040 tonnes per annum. No doubt, normally such a certificate is to be acted upon. However, learned counsel for the appellant pointed out to us that the Directorate of Industries had conceded that it had no wherewithal to ascertain the installed capacity and it simply went by the report of SISI. On the other hand, we find that the Revenue is also relyi .....

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ued by Commissioner of Industries should be acted upon or not. We are of the opinion that the matter be remanded back so that the material on which the Revenue relied upon is also discussed by the CESTAT and then a finding be arrived at to this effect. The impugned order is accordingly set aside and the matter is remanded back to the CESTAT for fresh consideration on the aforesaid aspect. We expect the CESTAT to decide the matter within six months. 4. The ld. Counsel for the appellant Shri Ashut .....

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ficate to indicate that the capacity is as per registration certificate produced by the Unit. The Director of Industries in his further certificate dated 09.09.1997 cancelled the amendment and confirmed the earlier certificate dated 27.07.1995 to the effect that the installed capacity of the appellant is 1,98,000/- M.T. P.A. The ld. Counsel submitted that the whole case against the appellant is on the ground that certificate issued by the Director of Industries, Madhya Pradesh is not acceptable .....

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ompetent authority under Notification to certify the installed capacity of the unit at the relevant time after taking into consideration of the facts, material and evidence furnished by both the sides. It is clear that the matter was pursued by the Department by addressing letters to the Commissioner of Industries, Madhya Pradesh. The Commissioner of Industries, Madhya Pradesh considered all the objections raised by the Department and again confirmed the certificate by holding that the Industry .....

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ector of Industries has already been examined by the Commissioner of Industries. The ld. Counsel also relied on various case laws to hold that when the Notification stipulates a certificate from a competent authority the Department cannot deny the concession if such certificate has been duly produced by the appellant assessee. 5. The ld. A.R. submitted that the Hon ble Supreme Court directed this Tribunal to examine the matter afresh. It is clearly recorded that the remand order is mainly due to .....

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on capacity of any unit. The ld. A.R. submitted installed capacity is entirely different from production capacity. Since the present certificate was issued based on verification by Director of SISI, the same cannot be the basis of extending exemption in terms of the above said Notification. The ld. A.R. also submitted that the various core machines and equipments installed in the plant of the appellant have capacity to achieve the installed capacity of 2,47,500 T.P.A. The appellants themselves c .....

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available when the installed capacity is not exceeding1,98,000 T.P.A. It is admitted fact that the Director of Industries, Madhya Pradesh, who is designated as a competent authority in the Notification itself has more than once certified the installed capacity of the appellant to be 1,98,000/- T.P.A. As observed by the Hon ble Supreme Court in normal circumstances such a certificate is to be acted upon. The Hon ble Supreme Court directed this Tribunal to examine the various material relied on b .....

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ch are relied upon by the Revenue to contest the correctness of certificate issued by the competent authority. In response, the Commissioner of Industries vide his letter dated 17.06.2003 categorically stated that the installed capacity of the appellant unit is 1,98,000 T.P.A. during the impugned period. He also observed that with reference to the various evidences submitted by the Revenue his office is in agreement with the clarification given by the appellant that their annual installed capaci .....

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ve deliberately mis-declared the installed capacity to the Central Excise Department to avail the concessional rate of duty under Notification No.24/91. The Original Authority observed that the very basis of installed capacity certificate is not correct especially when the capacity of individual machinery/equipment and the various other documents of the appellants themselves suggest that installed capacity of their plant was much more than 1,98,000 T.P.A. Accordingly, he held the appellant is no .....

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nt is to approach the competent authority with all the evidences to modify/cancel the certificate issued already. The Department did approach not only the Director of Industries but also Commissioner of Industries with all the evidences which were examined and the certificate was reiterated by the competent authority. As already noted, no other evidence was left to be considered. 8. Apart from the above, we also examined the evidences relied upon by the Revenue to question the certificate of the .....

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fore various authorities can at best raise the suspicion of the correctness of the installed capacity as mentioned in the certificate issued by Director of Industries. These various claims made by the appellants have already been examined by the Commissioner of Industries and on seeking clarification from the appellants on these claims he reiterated the certificate already issued. We find that the Department cannot reject the certificate issued by the competent authority and reiterated again by .....

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duced by the Revenue it is not open to the Commissioner to sit on judgment on such certificate. 9. The impugned order also mentions about a certificate issued by National Counsel for Cement and Building Material, Ballabhgarh. This certificate indicated installed capacity of the appellant as 2,67,300/-. The appellants contention is that they could not cross-examine the person who issued certificate of NCBM. Though they submitted a list of questions for cross-examination, the same could not be com .....

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