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TMI Blog2017 (12) TMI 442X X X X Extracts X X X X X X X X Extracts X X X X ..... ] These all appeals are filed by the Revenue against the Order-in-Original No. 02/2011 (C.Ex.) dated 31.03.2011. Since all these appeals are arising out of the very same Order-in-Original and they are being disposed of by a common order. 2. Heard both sides and perused the records. 3. On perusal of records, it transpires that the issue is regarding demand of Central Excise Duty on the cement on respondent M/s Nagarjuna Construction Company Ltd., on a finding that there was clandestine removal. 4. This is the third round of the litigation before the Tribunal. In the earlier rounds the matters were remanded by Tribunal back to the adjudicating authority to reconsider the issue afresh after allowing the cross examinations of the members of the Committee who were issued a capacity certificate that respondent M/s Nagarjuna Constructions Company were having more capacity. The adjudicating authority in the impugned order herein, has extensively considered the entire issue after the matter has been remanded back for the second time by Tribunal. We find that the reasoning which has been given by the adjudicating authority for not accepting the report of NCCBM (National Council f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was taken over by M/s Priyadarshini Cements Ltd. 25. Further, after going through the contents of the FIL letter dt. 05.06.1998, which the party sought to rely in support of their contention, I find merit in party s contention that Raw Mill installed had not functioned as guaranteed by the supplier due to technical and design problems. I consider it is pertinent to extract hereunder some of the contents of the said letter for better appreciation of facts and ease of reference. * Air flow: Raw mill being essentially an air swept mill adequate air flow through mill hoppers extremely a critical parameter for attaining the satisfactory operation of the mill. The air flow measurements carried out by both Fuller and Batlibo exports had confirmed our apprehension of insufficient air flow through the mill which is also corroborated by our observations of 444 to 644 material bed over of the grinding media charge even at the present low production rate of 40-45 TPHD. Action: In the case the fan is not performing to its required potential, we may have to make a corrective action to meet the design criteria in consultation with Batliboi. * Mill Liner: After careful rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to consider in their theoretical assessment. Hence, the NCCBM assessment of capacity basing on suppliers guarantee cannot be a valid evidence to sustain the allegation in the notice. 27. Further, after going through the copy of the Test certificate dt. 23.07.1998, I find strength in the party s submissions that NCCBM has taken the Bond index of lime stone as 13 instead of 14.3 while arriving at the calculations, as I find the test report clearly mentions that the Bond index (wet base) of sample (lime stone) as 14.3 Kwh/sh.ton. Hence, the capacity arrived at by NCCBM by taking bond index as 13 would not be a sustainable evidence to negate party s contention about validity of NCCBM report in the present context. 28. Further, it is significant to note that NCCBM report clearly mentions that the said report has not taken into consideration factors such as condition of the equipment, lower operational performance caused by lack of optimization, mismatching of auxiliaries in different sections of the plant etc., while estimating the capacities of core equipment. Thus it is evident the NCCBM report has not taken into consideration the operational problems and mismatching auxi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as ones now referred to, cannot b, so easily classifiable under the category of mini cement plants nor can they be categorically classified as the plants larger than the upper limit for mini cement plants. In such cases final certificate for plant categorizing it as mini cement plant or otherwise, you will appreciate, can be issued only after plant the plants have been installed and have worked for sufficiently larger periods when adequate operational data would have been available for proper assessment. 30. From the above contents of the letter, it is clear that the installed capacity of a cement plant need not necessarily be the designed/dimensional parameters of individual machinery and the same is required to be assessed basing on operational data after the machinery having installed. Further, the above clarification, also support the contention of the assessee that the Certificate given by the competent authority basing on experimentation and physical verification is a valid one as compared to the capacity assessment made by NCCBM basing on machinery dimensional parameters. 31. Further, securing installed capacity certificate has been enumerated as one of the cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to avail concessional duty during the material periods. As the principal allegation in the notice fails to sustain, other proposals in the notice with regard to penalty would also fails. As the allegations in the notice were found to be not sustainable on merit, I do not find any requirement for giving my findings on limitation. 5. As against above factual findings recorded by the adjudicating authority, it is seen that Revenue has not effectively countered any of these in the grounds of appeal. We find that the order of the adjudicating authority is correct and we concur with the reasoning given. It is also noted on the similar issue, demands raised on various similarly placed cement companies (as recorded at para 32 of the Order-in-Original) were dropped. 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. In view of the facts and circumstances of these cases, we hold that the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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