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2016 (3) TMI 996 - AT - Central ExciseBenefit of Notification No.24/1991-CE dated 25.07.1991 and 5/1993-CE dated 28.02.1993 denied - validity of the certificate towards installed capacity of the factory - Held that - In R.A. Cement Pvt. Ltd. (1999 (7) TMI 619 - CEGAT, NEW DELHI ) a similar set of facts were examined by the Tribunal. The assessee claimed certain concessions based on certificate issued by Director of Industries. Certain facts against the claim of the assessee was brought to the notice of the Directorate of Industries who neither cancelled the certificate nor withdrew it. In such situation, it was held that the Department cannot deny the concession claimed based on such certificate. In Suvarna Polymers 2000 (4) TMI 71 - CEGAT, CHENNAI The Tribunal held that when the Director of Industries considered the objections raised by the Department and re-conformed the Certificate it cannot be said that the certificate was obtained by fraud. On careful consideration of submissions made by both the sides and the materials on record, we find that the impugned order is not sustainable. Accordingly, the same is set aside. - Decided in favour of assessee
Issues Involved:
1. Eligibility for concessional rate of duty under Notification No.24/1991-CE and 5/1993-CE. 2. Certification of installed capacity by the competent authority. 3. Validity and acceptance of the certificate issued by the Director of Industries. 4. Examination of evidence presented by the Revenue contesting the installed capacity. 5. Legal authority of the adjudicating officer to question the certificate issued by the competent authority. 6. Cross-examination rights concerning the certificate issued by National Counsel for Cement and Building Material. Issue-wise Detailed Analysis: 1. Eligibility for Concessional Rate of Duty: The appellants, engaged in the manufacture of cement liable to Central Excise Duty, claimed the benefit of Notification No.24/1991-CE and 5/1993-CE, which provides a concessional rate of duty for cement factories using rotary kilns with installed capacities not exceeding 600 tonnes per day or 1,98,000 tonnes per annum, and total clearances not exceeding 2,20,000 tonnes per financial year. The primary condition for availing this concession is that the installed capacity must be certified by an officer not below the rank of Director of Industries in the State Government. 2. Certification of Installed Capacity: The appellants produced a certificate dated 27.07.1995 from the Director of Industries, Madhya Pradesh, confirming their installed capacity as 1,98,000 tonnes per annum. This certification was later amended and then reconfirmed by the Director of Industries on 09.09.1997. The Tribunal initially remanded the matter to the adjudicating authority to re-verify the installed capacity with the competent authority, which was again confirmed by the Commissioner of Industries, Madhya Pradesh. 3. Validity and Acceptance of the Certificate: The Supreme Court directed the Tribunal to re-examine the material presented by the Revenue, which contested the installed capacity certified by the Director of Industries. The Tribunal noted that the Director of Industries had more than once certified the installed capacity as 1,98,000 tonnes per annum, and normally such a certificate should be acted upon. The Tribunal found that the Department had no legal authority to reject this certificate, especially after it was reiterated by the competent authority. 4. Examination of Evidence by the Revenue: The Revenue presented various documents and communications suggesting that the installed capacity was higher than 1,98,000 tonnes per annum. These included declarations made by the appellants to banks, financial institutions, and other authorities. However, the Tribunal noted that all these evidences were already considered by the Commissioner of Industries, who reaffirmed the initial certification. 5. Legal Authority of the Adjudicating Officer: The Tribunal observed that the original adjudicating authority acted beyond its legal powers by questioning the certificate issued by the competent authority. The Tribunal emphasized that the original authority cannot sit in judgment over the certification provided by the Director of Industries, and any issues with the certificate should be addressed by the competent authority itself. 6. Cross-examination Rights: Regarding the certificate issued by the National Counsel for Cement and Building Material, which indicated a higher installed capacity, the Tribunal noted that the appellants were not allowed to cross-examine the individual who issued this certificate. The Tribunal found it legally untenable to substitute this certificate for the one issued by the competent authority without proper cross-examination. Conclusion: The Tribunal concluded that the Department cannot deny the concession based on the certificate issued by the competent authority, which was reiterated after considering all evidence. The Tribunal set aside the impugned order and allowed the appeals, reinforcing that the certificate issued by the Director of Industries must be accepted as valid for availing the concessional rate of duty under the relevant notifications. Pronouncement: The judgment was pronounced in the open Court on 23.02.2016, setting aside the impugned order and allowing the appeals.
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