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TMI Blog2017 (12) TMI 442X X X X Extracts X X X X X X X X Extracts X X X X ..... the cement on respondent M/s Nagarjuna Construction Company Ltd., on a finding that there was clandestine removal. 4. This is the third round of the litigation before the Tribunal. In the earlier rounds the matters were remanded by Tribunal back to the adjudicating authority to reconsider the issue afresh after allowing the cross examinations of the members of the Committee who were issued a capacity certificate that respondent M/s Nagarjuna Constructions Company were having more capacity. The adjudicating authority in the impugned order herein, has extensively considered the entire issue after the matter has been remanded back for the second time by Tribunal. We find that the reasoning which has been given by the adjudicating authority for not accepting the report of NCCBM (National Council for Cement and Building Material) has in detail examined what is installed capacity and design capacity. The findings are in Paragraph No. 22 to 33 which we reproduce: "22. Now, I discuss about the NCCBM report which was extensively discussed and relied upon in the notice. The crux of the party s contention in this regard is that: i) NCCBM report was prepared without physical verification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said letter for better appreciation of facts and ease of reference. * Air flow: Raw mill being essentially an air swept mill adequate air flow through mill hoppers extremely a critical parameter for attaining the satisfactory operation of the mill. The air flow measurements carried out by both Fuller and Batlibo exports had confirmed our apprehension of insufficient air flow through the mill which is also corroborated by our observations of 444 to 644 material bed over of the grinding media charge even at the present low production rate of 40-45 TPHD. Action: In the case the fan is not performing to its required potential, we may have to make a corrective action to meet the design criteria in consultation with Batliboi. * Mill Liner: After careful review of mill performance we had noticed that the mill is not drawing the required power proportionate to the grinding media charged. This could be due to the grinding media change not being lifted to the sufficient height in order to draw the adequate power. We have come to a conclusion by introducing lifting type design liners for the first 10 rows of the mill we would be able to improve the power draw by the mill. Action: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... report clearly mentions that the Bond index (wet base) of sample (lime stone) as 14.3 Kwh/sh.ton. Hence, the capacity arrived at by NCCBM by taking bond index as 13 would not be a sustainable evidence to negate party s contention about validity of NCCBM report in the present context. 28. Further, it is significant to note that NCCBM report clearly mentions that the said report has not taken into consideration factors such as condition of the equipment, lower operational performance caused by lack of optimization, mismatching of auxiliaries in different sections of the plant etc., while estimating the capacities of core equipment. Thus it is evident the NCCBM report has not taken into consideration the operational problems and mismatching auxiliaries (ducts etc) that has resulted in lower performance of raw mill, as discussed above. In the light of above the NCCBM report which was prepared based on equipment suppliers guarantee/equipment dimensions and other theoretical considerations, I am of considered view, does not have persuasive value to prop up the allegations made in the notice beyond any doubt or to negate the certificate given by the Competent Authority after verifying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional data would have been available for proper assessment." 30. From the above contents of the letter, it is clear that the installed capacity of a cement plant need not necessarily be the designed/dimensional parameters of individual machinery and the same is required to be assessed basing on operational data after the machinery having installed. Further, the above clarification, also support the contention of the assessee that the Certificate given by the competent authority basing on experimentation and physical verification is a valid one as compared to the capacity assessment made by NCCBM basing on machinery dimensional parameters. 31. Further, securing installed capacity certificate has been enumerated as one of the conditions for availing the benefit of said notification and the Government has considered Director of Industries as competent authority for issuing such installed capacity certificate. Once the assessee secures such certificate, I consider, it is beyond the jurisdiction of the department to question validity of such certificate issued by the competent authority. The assessee cannot be denied the exemption unless competent authority vacates the certificate, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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