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TMI Blog2015 (2) TMI 702X X X X Extracts X X X X X X X X Extracts X X X X ..... this regard the Commissioner has rejected the appellant’s claim regarding purchase of some additional machinery and equipment on the ground that the claimed purchase of machinery/equipment by the appellant from outside the State of Uttaranchal is not recorded in the register maintained at the Commercial Tax Department check post. However, this finding of the Commissioner is contrary to the order dated 24/3/07 of the Deputy Commissioner, Uttaranchal Commercial Tax Department under Rule 41 (8)/Section 9 (2) of the Uttaranchal General Sales Tax Act. On going through this order, it is clear that the Commercial Tax Department has accepted the appellant’s claim regarding purchase of components of furnace from outside the state and has decided to impose penalty only on the ground that the procedure prescribed in this regard was not followed. In this order, the Deputy Commissioner has clearly mentioned that the purchases of the assessee have been found recorded in their books of accounts. In view of this, the ground on which the Commissioner has rejected the appellant’s claim regarding purchase of the induction furnace components is not correct. Moreover, it is also seen that the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alongwith interest thereon under Section 11AB and imposed penalty equal amount on them, beside imposition of penalty under Rule 26 of the Central Excise Rules, 2002 on the employees/ Director of the appellant company namely Shri Vasudev Singh, Shri R.K. Gupta and Shri Subhash Chand. The appellant company as well as Directors/employees filed appeals to the Tribunal against the Commissioner s order dated 23/11/06 and the Tribunal vide order dated 12/6/07 remanded the matter to the Commissioner for denovo adjudication with direction that the Commissioner should consider the material on record. 1.2 In denovo proceedings, the Commissioner vide order-in-original dated 20th August 2008 once again confirmed the duty demand of ₹ 3,59,39,816/- against the appellant company alongwith interest thereon under Section 11AB and also imposed penalty of equal amount on the appellant company and imposed penalties on various Directors and employees of the appellant company. Against this order of the Commissioner, the appeal No. E/2398-2401/2008 EX have been filed. In respect of the subsequent period i.e. January 2006 to September 2006, October 2006 to June 2007 and July 2007 to Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d been received, that in the subsequent orders dated 08/9/08 and 31/12/08, the Commissioner has followed his order dated 20th August 2008 and in the order dated 31/5/07 he has followed his earlier order dated 23/11/2006, that once the Commissioner gives a finding that a capacity before 07/1/03 was 3 M.T. and after undertaking the expansion exercise, the same increased to 4.1 M.T., it is wrong to deny the benefit of exemption, when it is not denied that the height of the crucible had been increased, that in this regard he relies upon the judgment of the Tribunal in the case of Uttaranchal Iron Ispat Ltd. vs. CCE, Meerut reported in 2008 (229) E.L.T. 253 (Tri. Del.) which has been upheld by Hon ble Uttarakhand High Court in the case of CC CE vs. Uttaranchal Iron Ispat Ltd. reported in 2011 (266) E.L.T. 331 (Uttarakhand), that in this judgment, Hon ble High Court has held that the Board s Circular dated 21/1/04 must be read as a whole and that even modernisation which leads to increase in installed capacity by 25% or more, would have to be treated as substantial expansion, that in any case, the Commissioner s finding that the hydraulic system, which is claimed to have been rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that during 1997, the capacity of the crucible of the appellant unit had been determined as 3 M.T. vide order No. 53/IFU/ACP/2000 dated 31/7/2000 and on this basis the Commissioner has given a finding in absence of any evidence documentary or otherwise, regarding expansion of installed capacity before 07/1/03, it can be presumed that the production capacity was 3 M.T. before the specified date i.e. before 07/1/03. This finding of the Commissioner has not been challenged by the Department. Commissioner in para 4.3 of the same order has also given the finding that the capacity after 07/1/03 was 4.1 M.T. and this fact had also been verified by the Range Superintendent whose report has been endorsed by the Assistant Commissioner, Central Excise, Dehradun. On the basis of findings in para 4.2 and 4.3 of the order dated 20/8/08, the Commissioner, in para 4.4 of this order given a finding that the production capacity of the appellant increased from the earlier 3 M.T. during the period prior to 07/1/03 to 4 M.T. during the period after 7/1/03. The only basis for denial of the exemption benefit is that this production capacity has not been achieved by some additional machinery and in this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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