TMI Blog2017 (9) TMI 991X X X X Extracts X X X X X X X X Extracts X X X X ..... production capacity of the unit and the fact that the department had alleged total clearance worth nearly three times the maximum capacity. The Tribunal granted opportunity to the department to verify and if found inaccurate, controvert the Chartered Engineer's certificate. The onus is thus on the department to produce such material if so desired - appeal dismissed - decided against appellant. - Tax Appeal No. 601 of 2017 - - - Dated:- 14-9-2017 - MR. AKIL KURESHI AND MR. BIREN VAISHNAV, JJ. For The Appellant : Mr Paresh V Sheth, Advocate ORAL ORDER ( PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. The assessee is in appeal against the CESTAT dated 16.05.2017 raising following questions for our consideration: 1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest and penalties. The adjudicating authority i.e. Commissioner of Central Excise dropped the proceedings which order was challenged by the department before the Tribunal. The Tribunal by impugned judgement remanded the case before the Commissioner making following observations: 5. We have carefully considered the submissions advanced by both sides. The Revenue has assailed the impugned order on the ground that even though the investigation was over and the show cause notice was issued, the plea of production capacity is less than the quantity alleged to have been removed has been taken for the first time through the Chartered Engineers Certificate produced during the adjudication proceeding. The ld. Commissioner at Para 3.6.1 to 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Hence as per the Chartered Engineer factory work for full efficiency then turnover of the company could come to about of ₹ 75,00,000/- and the said turnover being less then exemption limit of ₹ 1,00,00,000/-. However the said production includes rejection which is again melted in furnace for re-casting. Thus, Noticee No. 1 could not have produced the goods beyond exemption limit by the installed and certified machinery. 3.9 In view of the facts and circumstances enumerated hereinabove, I find that the entries of private records impounded from the premises of Noticee No.1 and its godown are not corroborated to the effect that the said entries are in respect of production and clearances of the finished goods as well as I f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sary could independently assess through experts, verification of purchase documents, brochures/pamphlets issued by the manufactures of the machines, etc., the production capacity of the installed machinery. Since the matter is very old it is expected that de novo proceeding would be completed within a period of three months from the date of communication of this order. The Respondent is directed to co-operate in the matter. The Revenues appeal is allowed by way of remand. Cross-Objection filed by the Respondent is also disposed of accordingly. This judgement the assessee has challenged in the present appeal. 3. Learned counsel Mr. Sheth for the assessee submitted that the Tribunal committed an error in remanding the proceedings enab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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