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TMI Blog2018 (7) TMI 1200X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal. The Original Authority has no where established that certificate dated 25.09.2003 issued by Shri B.K. Arora, Chartered Engineer is not an admissible piece of evidence - Further the Original Authority has relied on the actual production whereas the requirement of notification is installed capacity. Demand do not sustain - appeal allowed - decided in favor of appellant. - APPEAL No. E/50110/2017-EX[DB] - A/71020/2018-EX[DB] - Dated:- 2-5-2018 - Mr. Anil Choudhary, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri Vineet Kumar Singh (Advocate) for Appellant Shri Rajeev Ranjan (Joint Commr.) AR for Respondent ORDER Per: Anil G. Shakkarwar Present appeal is directed against Order-in-Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med Revenue that they stopped availing Cenvat Credit on inputs and capital goods w.e.f. 27.09.2003 and started clearing goods at nil rate of excise duty from 27.09.2003. Revenue undertook investigation. During investigation statements were recorded. Statement of Shri Sanjay Agarwal was recorded on 20 March, 2004, and that of Shri V.C. Sharma was recorded on 25.03.2004. Revenue got the unit inspected by Dr. Arun Kumar, Professor Department of Electronics Computer Engineering, IIT Roorkee. Dr. Arun Kumar in his report dated 23.09.2004 has observed that increased installed capacity from 2 million picture tube per annum to 3 million picture tube per annum in certificate by Shri B.K. Arora, Chartered Engineer vide his certificate dated 25.09.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Computer Engineering, IIT Roorkee. Aggrieved by the said two Orders-in-Original dated 23.11.2005 and 14.12.2005, appellant preferred appeal before this Tribunal being Appeal Nos. 339 and 928 of 2006. Both the appeals were decided through common Final Order No. 51024-51025/2015 dated 26.03.2015. Relevant portion of the said Final Order dated 26.03.2015 are reproduced below for appreciation:- 6. We have considered the submissions from both the sides and perused the records. 7. The basic point of dispute in this case is as to whether the appellant have expanded their installed capacity by more than 25%. If this claim of the appellant is correct, they would be eligible for the exemption Notification. The appellant in support of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. In any case, since the Commissioners conclusion is based on the expert opinion of Professor Arun Kumar, in our view, his cross examination by the appellant should have been permitted, as the report of Professor Arun Kumar is only an opinion whose correctness has to be tested by his cross examination. The Commissioner in the impugned order simply relies upon the IIT Professor report on the ground that it is a later report and he is an independent authority and therefore she has no reasons to doubt the same. But she does not discuss as to why the certificate given by the Chartered Engineer is not correct. 9. In view of the above, we set aside the impugned orders and remand the matter to the Commissioner for de novo adjudication. In c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... talled capacity of the plant was increased from 2 million picture tube to 3 million picture tube per annum. It further records in said Para 33 that Shri Satish Jain, CMD requested to allow the cross examination of Professor Arun Kumar as directed by this Tribunal. He further submits that in Para 41 of the impugned Order-in-Original the Original Authority has recorded that Dr. Arun Kumar was expired on 27.08.2013 and, therefore, not available for cross examination. The learned counsel has further submitted that the Original Authority has stated in Para 55 of the said impugned Order-in-Original that the appellant submitted certificate of Chartered Engineer in support of their claim of substantial expansion and that he further taken note of ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because of his sad demise before the date of personal hearing. However, in the circumstances Revenue should have moved an application before this Tribunal for its direction in the circumstances where it was not possible to follow the directions of this Tribunal. We find that the Original Authority has no where established that certificate dated 25.09.2003 issued by Shri B.K. Arora, Chartered Engineer is not an admissible piece of evidence. Further the Original Authority has relied on the actual production whereas the requirement of notification is installed capacity. We, therefore, do not find the impugned Order-in-Original to be sustainable. We, therefore, set aside the impugned Order-in-Original and allow the appeal. The appellant shall ..... X X X X Extracts X X X X X X X X Extracts X X X X
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