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TMI Blog2019 (8) TMI 1681X X X X Extracts X X X X X X X X Extracts X X X X ..... 2006 in determining the percentage of increase in the fixed capital investment in plant and machinery in absence of any mention of Original Book Value in the said Notification. In view of the decision of the jurisdictional High Court of Gauhati in the case of The Commissioner of Central Excise Vs Jellalpore Tea Estate, [ 2011 (3) TMI 11 - GAUHATI HIGH COURT ] , the instant proceedings against the respondent by taking recourse to Section 11A of the Central Excise Act for recovery of alleged erroneous refund tantamount to circumventing the prescribed law, is clearly impermissible. Appeal dismissed - decided against Revenue. - Ex. Miscellaneous Application No. 76513 of 2019 And Appeal No. E/159 of 2012, CO-32/2012 - MO/76871/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o submit a detailed report on the genuineness of the claim. 4. Range Superintendent of the Division submitted a report and stated therein that the respondent had taken up expansion of the installed capacity by way of setting up of the machineries set out in the said report dated October 17, 2007. It was further reported that the respondent had duly intimated the Range Superintendent, by a letter dated March 2, 2007 about the Company s proposal for increasing the installed capacity, by way of adding / setting up new plant and machineries and that such installation was started on March 5, 2007 and completed on April 27, 2007, whereupon the commercial production was commenced with the new machineries on May 2, 2007. The Assistant Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, pursuant to an investigation undertaken by the Head Quarters, Anti Evasion Unit of Central Excise, Dibrugarh, a Show Cause Notice dated November 11, 2010 was issued alleging that the respondent had availed the benefit of the said Notification by way of Self Credit and refund of duty paid, during period May 2007 to July 2010 ( hereinafter referred to as the said period on misstatement of fact of eligibility under the said Notification and by allegedly furnishing fictitious documents of plant and machineries, in contravention of the provisions of the said Notification. The Show Cause Notice proposed demand and recovery of the duty amount of ₹ 85,83,753/- under Section 11A(1) of the Central Excise Act, 1944 along with interest the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on or before 31-03-2006 was not correct and proper in terms of Notification No. 20/2007 C.Ex dated 25-04-2007 and the Commissioner, erred in holding that Noticee No.1 has fulfilled the condition / terms of the Notification. The Order passed by the Commissioner is, therefore, erroneous and liable to be set-a-side. LD. Senior Advocate DR. Samir Chakraborty argued that there was no infirmity in the impugned order and submitted that the Commissioner was right in his interpretation of Clause 5 (b) of the Notification and to take the depreciated value of the plant and machinery in determining the percentage of increase in the fixed capital investment in plant and machinery effected by the respondent as required under the said Notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on March 31, 2006 in the instant case, as reflected in the Balance Sheets and the certificates issued by the Chartered Accountant certifying the same has to be taken into account. Contrary to the misconceived contentions of the Revenue, the related Balance Sheets of the respondent clearly disclosed that the value of the fixed capital investment as on March 31, 2006 was that as declared by the respondent ( duly certified by the Chartered Accountants ). The said figure was therefore correctly considered and accepted by the Commissioner. He further argued that the Show Cause Notice and the demand pertaining to the period May 2007 to November 2009 is barred by limitation, as the same was issued beyond the prescribed period of One Year as p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of any mention of Original Book Value in the said Notification. 9. We also find that in view of the decision of the jurisdictional High Court of Gauhati in the case of The Commissioner of Central Excise Vs Jellalpore Tea Estate, 2011 (268) ELT 14 (Gau), the instant proceedings against the respondent by taking recourse to Section 11A of the Central Excise Act for recovery of alleged erroneous refund tantamount to circumventing the prescribed law, is clearly impermissible. Following the said binding decision of the Hon ble Gauhati High Court, which has also attained finality, the instant appeal is liable to be rejected on this ground alone. Also we rely on the decision of the Apex Court in Commissioner Vs Green Ply Industries ..... X X X X Extracts X X X X X X X X Extracts X X X X
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