2023 (12) TMI 519

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....pertains to the year 2011, in the interest of justice, we have taken up the Appeal for disposal with the help of the Leaned AR. 3. The Appellant had sought exemption for payment of Excise Duty under Notification No. 33/99 dated 08/07/1999, on the ground that the installed capacity of their factory has been enhanced substantially by more than 25% after 24/12/1997. After initial round of litigation up to High Court, the matter was remanded for Denovo Adjudication to the Commissioner (Appeals). The Commissioner (Appeals) has upheld the Order of the Lower Authority and rejected the Appeal filed by the Appellant. Being aggrieved, the Appellant is before the Tribunal. 4. We have perused the Grounds of Appeal and the Impugned OIA. The issue ....

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....rtered Engineer in his report claimed that the expansion was effected from 01.04.2000 (the date of installation of the 2nd VFBD-EE3Dryer). But when the Range Superintendent has raised objection pointing out that the said dryer was installed on 20.04.2000 and as such the production capacity was increased w.e.f. 21.04.2000 and not from 01.04.2000, the Appellant vide their letter dated 09.12.2004 has agreed and accepted that the date of installation as indicated by the Range Superintendent w.e.f. 21.04.2000 and not from 01.04.2000, Clearly, the Appellant has also accepted the amendment readily, in the face of the said Report. Therefore, it is evident that the report of the Chartered Engineer cannot and ought not to be accepted blindly without ....

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....ngineer. Moreover, I also find that the Appellant themselves have impliedly contradicted and thus challenged the veracity of the report of the Chartered Engineer, and in fact, voluntarily accepted the report of the Range Officer regarding the effective date of increase in installed capacity. Therefore, here, the question is not of purported non-acceptance of the report of the Chartered Engineer and the Range Officer, it has been found that there were four number of dryers already installed at the factory, in fact. Obviously, one (number) ECP dryer of capacity of 140 kg./hr. had not been considered for assessing the installed capacity for the pre-increase stage, on the specious and untenable plea that the same was used for 'gapping' purpose.....

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....e pre-increase ground plan dated 10.12.1997, relied upon by the Appellant, and reckoned also for such determination, which has not been done. Therefore, it appears that the Appellant 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. 13. Further, the plea of the Appellant that their eligibility for exemption under the said notification has attained its finality once the Order-in-Appeal No. 40/CE(A) Ghy/04 ....