DHAR CEMENT LTD. Vs. CCE

JUDGEMENT

(1.) In these appeals, arising out of a common Order, the issue involved is whether the benefit of Notification No. 24/91 -CE, dated 25.7.1991 is available to the Cement manufactured by M/s Dhar Cement Ltd.

(2.) Shri Ashutosh Upadhyay, learned Advocate, submitted that M/s Dhar Cement Ltd., is having a mini Cement plant having installed capacity of less than 1,98,000 tonnes per annum; that as per the condition of Notification No. 24/91, they applied for and the Director of Industries issued a Certificate dated 27.7.1995 about the installed capacity of their unit to be 1,98,000 M.T., per annum; that, however, on persuation of the Central Excise Officers, the Director of Industries amended the said certificate under amendment dated 26.4.1997; that they represented the matter before the Director of Industries, who after making a detailed enquiry, again issued a certificate dated 9.9.1997 under which the amendment dated 26.4.1997 was cancelled and their installed capacity as certified under Certificate dated 27.7.1995 was confirmed; that the condition of the Notification has been complied with by the appellants. The learned Advocate, further, submitted that when the Legislature has given the authority to Director of Industries, then no body else can enjoy the said authority; that Central Excise Authority cannot sit as an Appellate Authority to the Director of Industries; that the Adjudicating Authority mainly relied upon the statement given by them to financial institution and others wherein it is alleged that the appellants had themselves stated that their installed capacity is 750 TPD, 1000 TPD or 2,47,000 TPA; that it was held in the case of Punjab Oil and Silicate Mills v. C.C.E. that the declaration of figures of sales before the Department of Industries with supporting affidavit will not suffice for making out a case of clandestine removal of goods and demanding duty thereon. Reliance was also placed on the decision in the case of Rishab Refractories Pvt. Ltd. v. C.C.E, Chandigarh , wherein it was held that "merely because the assessee conducted himself in a manner which was not conducive to ethics, the taxing authority could not invoke the provisions of reassessment and penalise him. The morality and intention of an assessee, the Court observed, does not enter into the field of adjudication in taxing law."

(3.) The learned Advocate also mentioned that once the appellant had produced a proof of the certificate duly issued by a Competent Authority regarding installed capacity, it was not open to the Adjudicating Authority to deny the benefit of the Notification to them by substituting his own concepts; that it was held in the case of R.A. Cement Pvt. Ltd. v. C.C.E. Allahabad 2000 (90) ECR 359 (T), that "Notification No. 175/86 speaks of a certificate granted by the Directorate of Industries If something new or wrong came to the notice of the Central Excise Authority, they should bring them to the notice of the Directorate of Industries. In the instant case, they, no doubt brought to the notice of the Directorate of Industries. However, the Directorate of Industries neither cancelled their certificate nor withdrawn it." Reliance was also placed on the following decisions: