Excise duty remission under Notification 128/77-C.E. cannot be denied solely for lack of a final technical certificate.

Notification No. 128/77-C.E. did not make production of a final certificate from the Director General, Technical Development a condition for remission of excise duty. The assessee could not be denied the benefit solely for non-production of that certificate once the appellate authority had held it unnecessary. The earlier appellate order also contemplated an enquiry into installed capacity, and the assessing authority had not conducted such enquiry. The assessing authority may first determine installed capacity by enquiry and then decide the extent of exemption, if any, in accordance with law.

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Issues: Whether the assessee could be denied remission of excise duty under Notification No. 128/77-C.E. on the ground that it had not produced a final certificate from the Director General, Technical Development, and whether the assessing authority could insist on such certificate without first determining the installed capacity by enquiry.

Analysis: The notification did not require production of a certificate from the Director General, Technical Development as a condition for the benefit. Once the appellate authority had so held, the assessee could not be faulted for non-production of such certificate. The earlier appellate order also contemplated enquiry into the installed capacity, but no such enquiry had been conducted. The assessing authority was free to make the necessary enquiry and then decide the extent of exemption, if any, in accordance with law.

Conclusion: The demand based solely on non-production of the final certificate was unsustainable and the writ petition was allowed in favour of the assessee.

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