2017 (12) TMI 442 - AT - Central Excise

Clandestine removal - cement - Held that - On a specific query from the Bench, Revenue was not able to confirm whether an appeal is preferred or otherwise. Learned Counsel for the respondent make responsible statement that being a Counsel for M/s Sagar Cements Ltd., and M/s My Home Cement Industries Ltd., they have not received any intimation of filing of appeals by the Revenue - appeal dismissed - decided against Revenue.

Issues Involved:
1. Demand of Central Excise Duty on cement due to alleged clandestine removal.
2. Validity of the installed capacity certificate issued by the competent authority.
3. Assessment of the capacity of the cement plant by NCCBM.
4. Technical and design issues with the raw mill affecting capacity.
5. Comparison with similar cases involving other cement companies.
6. Jurisdiction of the department to question the installed capacity certificate.

Detailed Analysis:

1. Demand of Central Excise Duty on Cement Due to Alleged Clandestine Removal:
The primary issue in these appeals is the demand for Central Excise Duty on the cement produced by the respondent, based on allegations of clandestine removal. This is the third round of litigation, with previous remands requiring reconsideration of the issue after cross-examinations.

2. Validity of the Installed Capacity Certificate Issued by the Competent Authority:
The adjudicating authority extensively reviewed the validity of the installed capacity certificate issued by the competent authority. It was concluded that the certificate, which was based on physical verification and experimentation, holds more validity than the theoretical assessment by NCCBM. The adjudicating authority emphasized that once an installed capacity certificate is issued by the competent authority, it is beyond the jurisdiction of the department to question its validity unless vacated by the issuing authority.

3. Assessment of the Capacity of the Cement Plant by NCCBM:
The NCCBM report, which was relied upon by the Revenue, was found to be prepared without physical verification of the factory. The adjudicating authority noted that the report was based on theoretical parameters and did not account for operational issues and mismatching auxiliaries. The report's failure to consider the actual operational performance and technical problems of the raw mill rendered it less credible compared to the installed capacity certificate.

4. Technical and Design Issues with the Raw Mill Affecting Capacity:
The adjudicating authority acknowledged the technical and design problems with the raw mill, as evidenced by correspondence between the respondent and the machinery supplier, Fuller India Ltd. These issues, which included insufficient air flow and inadequate power draw, affected the mill's performance and, consequently, the plant's capacity. The adjudicating authority found merit in the respondent's contention that these problems were not considered in the NCCBM's theoretical assessment.

5. Comparison with Similar Cases Involving Other Cement Companies:
The adjudicating authority noted that similar proceedings against other cement companies, such as M/s Sagar Cements Ltd., M/s My Home Cement Industries Ltd., and M/s Deccan Cements Ltd., were dropped by the Commissioner, Hyderabad III Commissionerate. The department did not appeal against these decisions, reinforcing the principle of equity before the law. The adjudicating authority found that differential treatment in the present case would be unjust.

6. Jurisdiction of the Department to Question the Installed Capacity Certificate:
The adjudicating authority emphasized that the department lacked jurisdiction to question the validity of the installed capacity certificate issued by the competent authority. The certificate, unless vacated by the issuing authority, remains valid and binding. The adjudicating authority cited various judgments supporting this position and concluded that the respondent was eligible for concessional duty during the relevant periods.

Conclusion:
The adjudicating authority's detailed examination of the NCCBM report, technical issues with the raw mill, and comparison with similar cases led to the conclusion that the allegations of clandestine removal were not sustainable. The installed capacity certificate issued by the competent authority was upheld as valid, and the department's jurisdiction to question it was dismissed. Consequently, the appeals were rejected, affirming the correctness and legality of the impugned orders.

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