1984 (4) TMI 285

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....iod 1-12-1979 to 31-3-1980 involving Rs. 2,24,020.64. The third appeal is in respect of the period 1-4-1980 to 31-5-1980, the differential duty being Rs. 1,33,249.48. The facts leading to the Appeals are as follows : 2. The Appellants are, inter alia, manufacturers of Kraft Paper having their factory at Wahegaon, Aurangabad. During April, 1974, the Appellants decided to instal the said paper mill. On 20-5-1974, they filed an application to the Ministry of Industries, New Delhi for the requisite licence to instal the said paper mill with installed capacity of 5000 M T. On 16-9-1975, licence was issued to the Appellants to instal the paper mill with an annual installed capacity of 5000 M.T. The Ministry of Industries, by their letter ....

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....ds, the capacity registered of your unit is 5000 tonnes per annum." 3. As already observed, the mill was commissioned in 1979. Notification No. 128 of 1977 was issued on 18-6-1977 which granted exemption of 75% of the Excise duty leviable in respect of the paper mill whose annual installed capacity did not exceed 2000 tonnes. The same notification also granted exemption of 60% of the duty in respect of paper mill whose annual installed capacity did not exceed 5000 tonnes. The Appellants were availing of the exemption under this notification. They were filing the necessary Classification Lists and were clearing their goods. On 29-7-1980, a show cause notice was issued alleging, inter alia, that the actual installed capacity of the Ap....

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....under : - "CAPACITY: The estimated maximum level of production on a sustained basis, preferably expressed with the corresponding estimate of 'time-efficiency' (q.v.) TIMT-EFFICIENCY : The fraction of total time during which a facility is in productive operation. See Stream days. STREAM DAYS : "Time Efficiency" (q.v.) expressed as operating days per year, allowing down time for maintenance, and other foreseeable interruptions of production." 5. He urged that the DGTD's second opinion was got behind the back of the Appellants, that the show cause notice was issued before DGTD's second certificate was furnished to the Appellants, and that the letter sent by the Deptt. to the DGTD seeking the opinion gave an exaggerated picture....

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.... to certify the installed capacity of the paper mill, particularly in cases where there is no doubt, if there is any difficulty with regard to any individual unit, the reference could be made to DGTD". 6. Mr. Jain, SDR, argued that the manufacturer's letter did not refer to the installed capacity. He emphasized that the second opinion of the DGTD should be accepted, especially as no cross-examination was sought and that report was not challenged. According to Mr. Jain, the Deptt. rightly calculated the installed capacity depending upon the maximum average production. The previous letter by DGTD was not final in the matter. He also stated that there were sufficient allegations in the show cause notice attracting the extended period o....

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.... the designed capacity cannot, therefore, be equated to the working capacity. Normally the production, especially, in regard to paper, depends upon the climatic condition, quality of paper and the nature of the pulp used. At Sweden Pulp made out of Pine Wood or softwood appears to have been used. But the appellants are using Bagasse/Straw and other agricultural raw materials. Even in 1983, the Consulting Engineer of Pulp and Paper Industries at Sweden has confirmed that this machine could be able to give production within 4500-5000 tonnes per annum. At this end, this machine was inspected by the DGTD, when a specific certificate in respect of installed capacity was sought for by the Appellants, on the behest of the Deptt. This certificate d....