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TMI Blog2016 (3) TMI 996X X X X Extracts X X X X X X X X Extracts X X X X ..... stainable. Accordingly, the same is set aside. - Decided in favour of assessee - Excise Appeal No. E/4034, 4035, 4036/2003-EX [DB] - Final Order No. 50842-50844/2016 - Dated:- 23-2-2016 - S. K. Mohanty, Member (Judicial) And B. Ravichandran, Member (Technical) For the Appellant : Shri. Ashutosh Upadhyay, Advocate For the Respondent : Shri. Govind Dixit, D.R. ORDER Per B. Ravichandran The appellants are engaged in the manufacture of cement liable to Central Excise Duty. They claimed benefit of Notification No.24/1991-CE dated 25.07.1991 and 5/1993-CE dated 28.02.1993. The concession under the said Notification is available to a cement factory using rotary kiln, with installed capacity certified as not exceeding 600 tonnes per day or 1,98,000 tonnes per annum and the total clearances of the cement produced by the factory, in a financial year, shall not exceed 2,20,000 Tons. The condition relevant to the present case to avail the said concession is that the installed capacity of the factory shall be certified by an officer not below the rank of Director of Industries in the State Government. Based on certain enquiry, proceedings were initiated against the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tself and it is argued that the respondent had accepted that its installed capacity was more than 1,98,000 tonnes per annum. In a case like this, we are of the opinion that the CESTAT should have considered the material placed by the Revenue and only then come to a conclusion as to whether the certificate issued by Commissioner of Industries should be acted upon or not. We are of the opinion that the matter be remanded back so that the material on which the Revenue relied upon is also discussed by the CESTAT and then a finding be arrived at to this effect. The impugned order is accordingly set aside and the matter is remanded back to the CESTAT for fresh consideration on the aforesaid aspect. We expect the CESTAT to decide the matter within six months. 4. The ld. Counsel for the appellant Shri Ashutosh Upadhyay submitted that competent authority to certify the installed capacity of the factory is Director of Industries in the State Government. The appellants have produced such certificate dated 27.07.1995 issued by the competent authority. It was certificate that the installed capacity of the appellant as 1,98,000 M.Ts. per annum. The Directorate General of Anti Evasion t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been duly produced by the appellant assessee. 5. The ld. A.R. submitted that the Hon ble Supreme Court directed this Tribunal to examine the matter afresh. It is clearly recorded that the remand order is mainly due to plethora of material relied upon by the Revenue to arrive at the conclusion that the installed capacity is much more than 1,98,000 tonnes per annum. It is the case of Revenue that the appellants themselves submitted before the various authorities about their installed capacity being much higher than 1,98,000 per T.P.A. Certificate issued by the Director of Industries is based on the report given by Director of SISI, Indore who clarified that the Institute only carries out assessment of production capacity of any unit. The ld. A.R. submitted installed capacity is entirely different from production capacity. Since the present certificate was issued based on verification by Director of SISI, the same cannot be the basis of extending exemption in terms of the above said Notification. The ld. A.R. also submitted that the various core machines and equipments installed in the plant of the appellant have capacity to achieve the installed capacity of 2,47,500 T.P.A. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Industries Madhya Pradesh, the original authority examined the issue of appellants eligibility and held that the appellants have deliberately mis-declared the installed capacity to the Central Excise Department to avail the concessional rate of duty under Notification No.24/91. The Original Authority observed that the very basis of installed capacity certificate is not correct especially when the capacity of individual machinery/equipment and the various other documents of the appellants themselves suggest that installed capacity of their plant was much more than 1,98,000 T.P.A. Accordingly, he held the appellant is not eligible for the concession. We find that while coming to such conclusion he has acted apparently, as appellate authority with reference to certificate issued by the competent authority in terms of the Notification. We find the original authority has no such legal powers to sit on judgment on the certificate issued by the competent authority designated by the Government. In case the certificate was obtained by mis-representation or not presenting full facts the only option left to the department is to approach the competent authority with all the evidences to m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamination, the same could not be completed though the permission for cross-examination was initially granted. We find to consider the certificate issued by the NCBM as correct and to substitute the same for the certificate issued by the competent authority will not be legally tenable in view of the detailed analysis made above. We find the appellants have correctly relied upon the various case laws in support of their contention that certificate issued by competent authority as stipulated by law cannot be ignored by the Department. These are as follows:- 1. Titan Medical System Pvt. Ltd. vs. Collector of Customs, reported in 2003 (151) ELT 254 2. Autolite (India) Ltd. v. Union of India reported in 2003 (157) ELT 13 3. Marmo Classic v. Comm. Reported in 2013 (290) ELT 439 4. Yellamma Dasappa v. Commissioner of Customs reported in 2000 (120) ELT 67 5. R.A. Cement Pvt. Ltd. v. CCE, Allahabad reported in 2003 (161) ELT 964 6. Bses Kerala Power Limited v. CC, Cochin, reported in 2006 (196) ELT 246. 10. In R.A. Cement Pvt. Ltd. (supra) a similar set of facts were examined by the Tribunal. The assessee claimed certain concessions based on certificate issued by Direct ..... X X X X Extracts X X X X X X X X Extracts X X X X
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