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TMI Blog2023 (12) TMI 519X X X X Extracts X X X X X X X X Extracts X X X X ..... nt has intentionally excluded this capacity from being considered for inclusion in the installed capacity of the factory in the pre-increase stage, and concealed material information from the Department. Consequently, considering this factor, the resultant increase in installed capacity after the expansion ( increase ) was found to be mere Four percent (4%), which is not sufficient. There are no necessity to interfere with the detailed findings and the Order passed by the Commissioner (Appeals), wherein he has considered all the factual details and Chartered Engineer s Certificate and the statutory provisions. Appeal filed by appellant dismissed. - HON BLE MR. R. MURALIDHAR, MEMBER (JUDICIAL) And HON BLE MR. K. ANPAZHAKAN, MEMBE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s) has considered the Chartered Engineer Certificate and all the factual details in a detailed manner and has given the following findings:- 7. Whereas the Appellant have contended forcefully that their original installed-capacity has been increased in excess of the stipulated Twenty five percent, (25%), as evidenced by the Chartered Engineer s report, effected by means of replacing the ECP and VFBD Dryers by set of two new VFPD-EE3 Dryers together with the inclusion of the ECP Dryer (capacity: 140 kg./hr), which was earlier used for gapping purpose, with effect from 21.04.2000, and hence are eligible for exemption under the said notification, the Department had contended that the post-increase stage of twenty seven point eight seven (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me should necessarily have been considered and included for assessing the pre-increase installed capacity, and it cannot be included for the post-increase determination, as has been done by the Appellant. Hence, the Appellant s claim of due increase in the installed capacity is not borne out by the material and evidence on record. 10. The Appellant have forcefully urged that the Chartered Engineer s report is sacrosanct as he is a professional expert. There can be no dispute that a Chartered Engineer is competent to determine interalia the assessment of capacity of various machines. The context and circumstances in which the said Report is required to be evaluated and considered would depend upon the facts obtaining in each case, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubstantive issue that has to be duly considered is that the Appellant in their first claim (for exemption benefit) dated 16.02.2004 had themselves shown in their assessment report that the said ECP Dryer with the capacity of 140 kg./hr. was used for manufacturing purpose. But surprisingly, the Appellant in their second claim thereafter dated 5.8.2004 have shown in the assessment report that the same ECP dryer was used for gapping purpose, in similar circumstances-without recording proper justification. Hence, the Lower authority has rightly held that the claim of the Appellant is self-contradictory, not tenable and hence also not accepted. 12. It is also evident that the claim of the Appellant that the ECP Dryer was used for gappin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... belated stage; and in relation to which the aforesaid Order-in-Appeal dated 08.04.2004 has been passed. Their earlier claim has lapsed and is a closed chapter. It cannot be revived now in such apparent devious manner. The present issue is arising out of their fresh claim filed vide their letter dated 05.08.2004 and has to be accordingly dealt with distinctly. It has been confirmed that the installed capacity of the Appellant s factory has not been increased by less than Twenty five percentage (25%); the increase in installed capacity after expansion being inadequate-mere Four percentage (4%). Hence, the Appellant would not be considered eligible for the exemption contained in the said notification. [Emphasis supplied] 6. We do not fin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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