Customs, Excise and Gold Tribunal - Calcutta
Doyang Tea Estate vs Commissioner Of Central Excise on 18 January, 2005
Equivalent citations: 2005(186)ELT342(TRI-KOLKATA)
ORDER S.S. Sekhon, Member (T)
1. These two appeals filed by the Assessee and Revenue are being disposed of by this common order. The assessee is engaged in the manufacture of Tea and Wastes at its garden Golaghat, Assam and sought the benefit of Notification 33/99-C.E., dated 8-7-1999. They submitted the certificates from a Chartered Engineer dated 29-5-2002 and a report on increase of factory manufacturing capacity signed by this Chartered Engineer on 4-12-2001. The certificates in very clear terms provide that with the proposed modifications/alterations, the installation of new machines has increased the capacity of this tea factory by 30%.
2. The Department, however, was of the opinion that the benefit of exemption for the period 1-6-2000 to 3-6-2002 in terms of Notification No. 33/99 was not available as the assessee had suppressed the actual installed capacity by way of furnished fabricated documents to the Department in order to avail the said benefit. The Commissioner vide order in impugned, confirmed the charges brought against the assessee and demanded duty to Rs. 13,24,589.00 erroneously refunded along with interest. Revenue is aggrieved against this order of the Commissioner inasmuch as no penalty was imposed by the Commissioner.
3. After considering the submissions made and the material on record, it is found -
(a) A perusal of the order impugned and the submission of the learned D.R. to the effect that there is an attempt to mislead by submitting the certificates of the expert Chartered Engineer would disentitle the benefit of notification and the findings of the Collector as arrived at should be upheld since the Collector has applied his mind as to how the certificate is not acceptable in terms of the material specified in the certificate and the reports. The learned D.R. laid stress on the accepted meaning of the term 'substantial expansion'. This submissions on behalf of Revenue cannot be upheld since the expert's opinion can only be challenged by bringing on record the opinion of other experts in the field. The opinion and knowledge of the Adjudicator cannot be the final words and to be applied in the face of an expert opinion. The learned DR points out that the certificate dated 29-5-2002 by the Chartered Engineer is signed on 29-5-2002 but from the rubber stamp endorsement of the receipt in the assessee's Kolkata office of 17-11-2003 would indicate that certificate has been fabricated. However, on questioning from the Bench, he could not point out any discrepancy in the certificates on record which is signed by the same Chartered Engineer on 4-12-2001 and the report on increase of factory manufacturing capacity of the assessee especially, the summary contains therein which reads as follows :
"It is found from various calculation that the minimum increase in capacity after addition of new machineries is 30% against our required 25%. The sections, where no new machineries are added, those sections are found to be already well equipped to bear the additional load arising out of additioning of new machineries in certain other sections".
(b) In view of this summary in the report and following the same and in absence of any expert opinion brought on record by Revenue to demolish this report, we find that this report cannot be assailed. Therefore, we find no merits in denial of the exemption.
(c) In view of our finding of the eligibility to Notification No. 33/99, we find no reason to confirm the duty recovery as arrived at by the ld. Commissioner nor we find any reason to impose penalty and or interest. The order of the Commissioner are required to be set aside.
4. In view of the findings arrived at assessee's appeal is allowed and Revenue's appeal is required to be dismissed.
5. Order accordingly.