2015 (5) TMI 24

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....96 ZNA/01 dated 25.10.2001. 2. Shri P.M. Dave, (Advocate) appearing on behalf of the appellant during the hearing and through written submissions argued that after receipt of OIO dated 25.10.2001 appellant went to the Gujarat High Court through a writ petition and Hon'ble Gujarat High Court vide order dated 25.2.2012 in SCA No. 10588 of 2001 with SCA No. 10590 of 2001 in the case of Mangal Textile Mills Pvt. Limited and others vs. UOI [2002 (49) RLT 265 (Guj.)] decided the case in favour of the appellant on merits. That Revenue took the matter to the Supreme Court and the Apex Court vide order dated 18.2.2010 in CA No. 1850-1851 of 2003 remanded the case to CESTAT to decide the issue on merits. Learned Advocate made the bench go through the judgments dated 25.2.2002 and 18.2.2010 passed by the Hon'ble Gujarat High Court and Hon'ble Supreme Court respectively. 2.1 Shri P.M. Dave, (Advocate) argued that appellant filed an application under Chapter E-xA [Rule ZNA to 96ZND] of the Central Excise Rules, 1944 introduced under Notification No. 16/2001-CE (NT) dated 30.4.2001. That the required declaration under Rule 96ZNB regarding original value of the investments made ....

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....er contended by the Learned Advocate in the written submissions that in the decision of Rajasthan High Court in the case of Sulzer Processors Pvt. Limited vs. CCE -[2010 (262) ELT 641], heavily relied upon by the learned Authorised Representative, the Commissioner had appointed a Cost Accountant under Section 14A of the Central Excise Act for disputing the certification made by the assessee s Chartered Accountant; the Cost Accountant so appointed by the Commissioner visited the factory of the assessee and then submitted a report about value of investment in plant and machinery linking his physical verification with the figures in the assessee s balance-sheet; and the Cost Accountant so appointed by the Commissioner was also allowed to be cross examined in adjudicating proceedings before the Commissioner held that the valuation certificate by the assessee s Chartered Accountant was incorrect and that the valuation report of the Cost Accountant appointed by the Department was more accurate and acceptable. But in the present case, the Commissioner has taken it upon himself to submit a report about valuation of pant and machinery and also about applicability of AS-10 without appointing....

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....ons contained in Rule 96 ZNB(1) of Central Excise Rules, 1944, reproduced below, if this value is less than Rs. 3 Crore then appellant is entitled to avail Compounded Levy Scheme for the textile manufactured by them:- "96ZNB. Conditions for availing of special procedure. (1) The original value of the investment in the plant and machinery installed in the factory of the independent textile processor of the said goods, as on the 1st March, 2001 or on the 1st day of May, 2001, whichever is higher, for an existing factory of the independent textile processor or on the date of making the application under Rule 96ZNA in the case an independent textile processor commencing production for the first time in a new factory coming into existence after the 1st day of May, 2001, shall not exceed three crore rupees, irrespective of whether such plant and machinery is in use or not, or is in working condition or not, and the independent textile processor shall declare the original value of investment in such plant and machinery installed in his factory, on the dates mentioned above, in the prescribed format duly certified by a Chartered Accountant or cost Accountant. The Commissioner of Central....

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....lant. The submission is not correct. The contents of the Notification No. 41/2001 have been reproduced above and evident it is that thereby only an explanation has been added so as to remove the doubts regarding method of assessment of value of investment in plant and machinery. Such an amendment, essentially being clarificatory in nature, cannot be considered taking away any of the vested rights of the appellant. It being a matter of exemption, if anything in the original Exemption Notification called for clarification or explanation, the exercise in that direction was unexceptionable. By the said Notification No. 41/2001, nothing more has been done except providing that the valuation shall be as per the accounting standards (AS10). Such an explanation was only engaged to remove the ambiguity or doubts and to avoid fanciful valuation from either side. Noticeable further it is that even under the original Scheme, the Commissioner was entitled to require any documentary evidence as considered appropriate in respect of valuation before granting the application. 40. It is not correct to say that the department has changed the system of valuation after some rights have crystallized ....

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....in the year 1990 when the unit was established and therefore, at least 25% depreciation for the 4 years can be safely presumed." 9. We are unable to accept the findings of the adjudicating authority for the reasons that adjudicating authority can not sit over the certification done by the Chartered Accountant, as per the Accounting Standards and decide the value of the plant and machinery as per his own verifications got made and best judgment. Appellant filed the required declaration as per the provisions of Rule 96ZNB(1) of the Central Excise Rules, 1944, which was duly certified by the Chartered Accountant. After the issue of Notification 32/2001-CE and 41/2001-CE, appellant gave a certificate dated 20.9.2001 in continuation of earlier certification from the same Chartered Accountant that valuation of the fixed assets was done as per Accounting Standard 10 (AS-10). It is observed from the provisions of Rule 96ZNB (1) of Central Excise Rules, 1944 that there is no mention of valuation to be done by Accounting Standards by the Chartered Accountant. Subsequent certificate given by the Chartered Accountant to that effect can not be brushed aside by the adjudicating authority to h....

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....e does not conform specification for crude palm oil (edible grade) as per IS-8323-E-1977. It appears that the said sample was also forwarded through the Referal Hospital and Community Health Centre, Mundra-Kutch, to the Public Analyst, Food and Drug Laboratory, Vadodara for opinion. He has opined to the effect that the sample conforms to the standards and provisions laid down under the Prevention of Food Adulteration Rules, 1955, for palm oil and cannot be used as such for human consumption. Therefore, once the competent authority who is technically qualified to tender opinion in relation to the technical standards prescribed under the provisions of Food Adulteration Act and Rules thereunder has tendered his opinion it would not be open to any one to take a contrary stand, unless and until such technical opinion is displaced by specific and cogent evidence in the form of another technical opinion. Merely by approaching the matter by stating that the goods could be converted into palm oil of edible grade by carrying out certain processes, the respondent No. 3 who is an officer of the department cannot displace the report of technical expert, nor can he insist that inspite of such re....