2008 (5) TMI 177 - AT - Central Excise

Area based exemption - benefit of exemption Notification No. 33/99-C.E., dated 8-7-99 denied on the ground that assessee have not carried out 25% expansion in the installed capacity - Chartered Engineer having proceeded in this matter has come to a conclusion that the respondents have exceeded the installed capacity by over 40% - Denial of exemption mere for the fact that capacity of drawing section was not increased is not justified

Summary

Issues:
Benefit of exemption under Notification No. 33/99-C.E. denied due to alleged failure to carry out 25% expansion in installed capacity.

Analysis:
The original authority denied the benefit of exemption to the respondents based on the alleged failure to meet the 25% expansion requirement in the installed capacity. The lower appellate authority, however, allowed the benefit of exemption, leading to the Department's appeal. The matter was examined in detail by the Tribunal with the assistance of both parties and in reference to the terms of the Notification and Ministry's Circular. The Circular clarified that substantial expansion does not necessarily mean expansion in all departments and that production increase is not a prerequisite for the exemption. The respondents provided a detailed Certificate from a Chartered Engineer showing the installed capacity before and after the claimed expansion in each department crucial for tea production. The Chartered Engineer logically determined the overall installed capacity by considering the lowest capacity among all departments as a bottleneck. It was concluded that the respondents had exceeded the installed capacity by over 40%.

The Department argued that the capacity of the drawing section, crucial for tea production, had not increased, implying a failure to increase the installed capacity. However, the Tribunal found that neither the Notification nor the Ministry's Circular specified the drawing section's capacity as the sole crucial factor in determining installed capacity. Even if the drawing section had a higher capacity, the respondents could not have produced more than the lowest capacity department, the fermenting section, without evidence of exceeding its capacity before the expansion. The detailed and unchallenged Certificate from the Chartered Engineer supported the respondents' position. Despite the lower appellate authority's lack of detailed examination, the Tribunal found no reason to interfere with the decision to allow exemption to the respondents.

In conclusion, the Department's appeal was rejected, and the cross objection by the respondents was disposed of. The Tribunal upheld the lower appellate authority's decision to grant the benefit of exemption under Notification No. 33/99-C.E.