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TMI Blog2016 (8) TMI 841X X X X Extracts X X X X X X X X Extracts X X X X ..... licensed capacity sanctioned. Notification No.32/99-CE dated 08.07.1999 - eligibility for benefit - Chartered Engineer vide his report dated 17.05.2005 has not taken veneer production into consideration while arriving at more than 25% expansion in installed capacity - Held that:- Adjudicating Authority further justified the expansion by not only based on a Chartered Engineer s Certificate dated 17.05.2005, but also relied upon a report of National Institute of Technology Agartala (A Central Government Institute). Certification given by two experts cannot be brushed aside without taking any other opinion of an expert as held by various judicial pronouncements relied upon by the Respondent. No evidence has been brought on records in the review order that any other expert s opinion was taken by the Department to counter the expert opinions obtained by the Respondent. In the absence of any such expert opinion obtained by the department it cannot be appreciated that quantity of veneer production should also be taken into consideration while determining the expansion undertaken. CBEC also while issuing a clarification under F.No.354/08/98-TRU dated 09.07.1999 opined that in case of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R) during the hearing proceedings as well as through written submissions argued that Respondent is engaged in the manufacture of Veneers and Plywood falling under chapter-44 of the Central Excise Tariff Act, 1985. That as per an order dated 15.01.1998 passed by Supreme Court there were restrictions on installation and expansion of wood based industries. That inspite of the strict instructions and limited utilization of timber by Apex Court the Respondent sought 25% expansion under Notification No.32/99-CE dated 08.07.1999. That Revenue has filed this appeal to determine whether Respondent has carried out substantial expansion in the installed capacity for becoming eligible to expansion under area based exemption Notification No.32/99-CE dated 08.07.1999. It is the case of the Revenue that as per the correspondence exchanged between the department and the Senior Nagaland State Forest department there is no increase in the installed licenced capacity in the old wood based industries of Nagaland after 30.10.2002 and that exemption to the Respondent is not admissible. That licenced installed capacity of Veneer Plywood of the Respondent was 6625 CUM 26000 CUM respectively. That Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... similar area based exemption 49/2003-CE 50/2003-CE both dated 10.06.2003, expansion at each and every section of the manufacturing unit is not required. Learned Advocate also made the Bench go through para 4 of CBEC clarification F.No.354/08/98-TRU dated 09.07.1999 and argued that as per Steel Authority of India vs. CC, Bombay [2000 (15) ELT 42(SC ) department cannot take different views in different states. (iv) That respondent also obtained subsequently expansion certification from a Chartered Engineer regarding more than 25% exemption undertaken. That another report from National Institute of Technology, Agartala (A Central Govt. Institute), certifying more than 25% enhancement in installed capacity, was also considered by the Adjudicating authority as per third para on internal page 34 of the Order-in-Original dated 31.05.2011. That expert opinions cannot be brushed aside by the Adjudicating authority as held in para 9 of case law Farm Fresh Foods Pvt.Ltd. vs. CCE, Chandigarh (supra). (v) That entire veneer manufactured are used captively in the manufacture of plywood during the period of demand. That certain categories of veneers not manufactured by the Respondent are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsion carried out, could have been called by the Adjudicating authority. 6. So far as point at para 5(i) above is concerned it is observed from last para on internal page-35 of the Order-in-Original dated 31.05.2011 that PCCF vide a letter dated 15.10.2009 has clarified that licensed capacity of the appellant for veneer production is 6625 CUM and plywood production is 26000 cum and that no permission from the forest department is required for enhancement of installed capacity if the enhancement is within the licensed capacity. In view of the clarification dated 15.10.2009 discussed by the Adjudicating authority it cannot be said that no expansion in the installed capacity could be enhanced by the Respondent. This letter dated 15.10.2009 has not been considered by the reviewing Committee of Chief Commissioners while passing Review Order No.03/Review/CCO/SH/2011 dated 18.08.2011.There could be various stages by which installed capacities could be enhanced by the appellant so long as it remains within the licenced capacity decided by State Forest department in the light of Supreme Court s judgement dated 15.01.1998. There is also no requirement under Notification No.32/99-CE dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Similar view has been taken in the following case laws that in all cases additional machinery need not be added to increase installed capacity and even replacement of old machines with new machines without changing other parameters, may also lead to more than 25% expansion :- (i) CCE vs. Bhandari Deepak Industries Pvt.Ltd. [2015 (318) ELT 677 (Tri.)] (ii) CCE vs. Sudarshan Pine Products [2014 (305) ELT 158 (Tri.)] (iii) Rana Casting Ltd. vs. CCE [2010 (257) ELT 104 (Tri.)] (iv) CCE C vs. Rana Castings Ltd. [2015 (320) ELT 396(Uttarakhand)] (v) CCE, Shillong vs. Hatikuli Tea Estate [2008(230)ELT 497(Tri.-Kol)] (vi) CCE, Shillong vs. Binnakandy Tea Estate [2009(235)ELT 686(Tri.-Kol)] (vii) Farm Fresh Foods Pvt.Ltd.v.CCE, Chandigarh [2009(241)ELT 74(Tri.Del.)] 7.2 In the case of Farm Fresh Foods Pvt.Ltd. vs. CCE, Chandigarh(supra), relied upon by Respondent, CESTAT Delhi held that a Chartered Engineer Certificate cannot be brushed aside in a casual manner in the absence of any contrary opinion brought on record by the Revenue. It is also observed that the ratio laid by this Bench in the case of CCE, Shillong vs. Hatikuli Tea Estate [2008 (230) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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