TMI Blog2000 (9) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 27-4-1989. The classification list was approved by the jurisdictional Assistant Collector provisionally and the party was asked to produce the licensed capacity certificate as required under Notification 23/89-C.E. as amended. The respondents could not produce the certificate at that time. Department, therefore, by show cause notice dated 16-7-1990 proposed to deny the benefit of concessional duty for the period 1-5-1989 to 31-12-1989 and recover the differential duty for the said period under Section 11A of the Central Excises Salt Act (CESA), 1944. In their reply to the show cause notice, the respondents submitted that they had already produced the required certificate. They also cited an earlier order of the jurisdictional Collector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice dated 16-7-1990 for the period May-August 1989 was time-barred. He urged us to reject the appeal. 3. The issue before us is whether the benefit of Notification No. 23/89-C.E., dated 1-3-1989 as amended was available to the respondents for the period 1-5-1989 - 31-8-1989. 4. Notification No. 23/89-C.E., dated 1-3-1989 reads as follows :- In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excises and Salt Act, 1944 (1 of 1944), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts cement falling under sub-heading No. 2502.20 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) and manufactured in a factory using vertical shaft kil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot exceeding 200 TPD, for the period 1-5-1989 to 31-8-1989. We note that, in his order of adjudication, the Assistant Collector had also found to the same effect. The adjudicating authority, however, denied the benefit of the Notification to the assessees on the ground that, going by the production of the unit for 1988-89 (91,000 tonnes) and 1989-90 (94684 tonnes), it could be found that their actual installed capacity was 300 TPD = 99000 TPA (tonnes per annum), which was well above the 'prescribed limit' of 200 TPD = 66000 TPA. It is this decision of the original authority that is sought to be restored. 7. The adjudicating authority was patently in error as rightly observed by ld. Collector (Appeals). The Assistant Collector was obvious ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he adjudicating authority preferred to call "actual production capacity" or "installed capacity" or "actual installed capacity", nor does the notification contain any mention of what the appellants have referred to as "recognised capacity". "Licensed capacity" can only be what is prescribed as production capacity in the industrial licence issued by the competent authority. It is in this sense only that the expression has been used in the notification. The rule of strict interpretation should be applied to fiscal statutes and exemption notifications thereunder. The reliance placed by ld. Advocate on the Orissa. High Court's judgment in the case of Raj Exports v. NALCO Ltd. [1996 (87) E.L.T 349 (Ori.)] is opposite to this context. In that cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts and accessories permissible under Entry 295 of the Schedule to the Import Control Order but were motor cycles/scooters in CKD condition prohibited in terms of Entry 294 of the said Schedule. The aggrieved party challenged the Deputy Collector's order. The dispute eventually came up before the apex court. The Supreme Court, after examining Entries 294 and 295 ibid read with the relevant provisions of the Imports and Exports (Control) Act, 1947 as well as the relevant provisions of the Sea Customs Act, 1878, held as under : The result is that when the Collector examines goods imported under a licence in respect of goods covered by entry 295 what he has to ascertain is whether the goods are parts and accessories, and not whether the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000 TPA = 200 TPD for the period 1-5-1989 to 31-8-1989 and further proof of any higher capacity having not been endorsed in their licence for such period, it was not open to the Assistant Collector to deny the benefit of the notification to them by substituting his own concepts for the expression "licensed capacity" in the Notification. 11. The respondents' licensed capacity of production for the period of dispute was 66000 TPA = 200 TPD and, therefore, they were eligible for the benefit of concessional duty on cement for such period in terms of Notification No. 23/89-C.E. (as amended). In view of this finding we are not dealing with any other question raised in this appeal. The impugned order of ld. Collector (Appeals) is upheld and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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