2008 (12) TMI 199

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....f Act, 1984. The appellant unit is located in the State of Himachal Pradesh. They availed benefit of exemption Notification No. 50/2003-C.E., dated 10-6-2003. 2. The Asstt. Commissioner of Central Excise held that the appellants are not entitled to avail the benefit of area based exemption under Notification No. 49-50/2003-C.E. dated 10-6-2003, which is upheld by the Commissioner (Appeals). The appellants filed Appeal No. E/707 of 2008. A show cause notice was issued proposing demand of duty for the period 20th January, 2005 to 31-3-2007 by virtue of denial of the exemption notification. The Commissioner of Central Excise by Order dated 8-8-2008 confirmed the demand of duty and imposed penalty along with interest, The appellants filed Ap....

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....ner (Appeals) failed to appreciate the above evidences in proper manner. He relied upon the decision of the Tribunal in the case of Doyang Tea Estate v. Commissioner of Central Excise, Shillong reported in 2005 (186) E.L.T. 342 (Tribunal-Kolkata). He also drew the attention of the Bench to the Board's Circular dated 9-7-1999 as reproduced in the case of Assam Petrochemicals Limited v. CCE, Shillong reported in 2004 (170) E.L.T. 306 (Tribunal-Kolkata). 6. Ld. DR reiterates the findings of the Commissioner and the Commissioner (Appeals). He submits that it is revealed from the Certificate issued by the District Industries Centre that there was no change of power load before and after expansion of installed capacity. He further submits that....

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....ermined on the basis of number of products and power load. In our view, the substantial expansion of 25% would be determined to the unit as a whole but not product-wise or power load. We find from the various evidences placed by the appellants including the certificate of the DIC that there is a substantial expansion of installed capacity by more than 25% increase. It is seen that CBEC vide their letter F.No. 354/08/98-TRU, dated 9-7-99 in the context of benefit of exemption Notification No. 32/99-CE., dated 10-7-99 clarified as under:- "4. As regards the question whether a new industrial unit has commenced commercial production on or after 24-12-1997 or substantial expansion by 25% in installed capacity has taken place a decision may be....