P. Anjani Kumar DECISION
S.S. Garg, Member (J)
1. Revenue has filed the present appeal against the impugned order dated 24.05.2013 passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) has rejected the department's appeal and upheld the Order-In-Original.
2. Brief facts of the present case are that the respondent registered with the Deptt. vide Regn. No. AABCP6257AXM001 dated1.7.03 are engaged in the manufacture of Ferro Silicon, Calcium Carbide and Ferro Chrome falling under 1st Schedule to the Central Excise Tariff Act, 1985 (5 of 1986). They requested that they intend to avail the benefit of Notification No. 1/2010-CE : MANU/EXCT/0004/2010 dated 6.2.2010 (hereinafter referred to as "the notification") after undertaking expansion of their unit by making new investment by more than 25% of the existing value of plant & Machinery after 6.2.2010. In support of their claim, they placed on records the copies of requisite documents with regard to installation of additional machinery and approvals granted by the DIC Jammu. The adjudicating Authority after going through the case records accepted the said expansion by way of increase by not less than 25% in the installed capacity of the unit as per provisions of the said notification w.e.f. 24.3.2012 i.e. date of production from expanded capacity. Aggrieved by the said order passed by the adjudicating authority revenue has filed appeal before the Commissioner (Appeals) and the Commissioner (Appeals) vide the impugned order has rejected the appeal of the appellant and upheld the order passed by the adjudicating authority. Hence, the present appeal. The Respondent has filed the cross objections which are also listed for today. Further, the Ld. Counsel for the respondent his vide letter dated 18.12.2023 requested the Tribunal to decide the matter on merits as he is unable to appear on account of severe throat infection.
3. Heard both the parties and perused the record.
4. Ld. AR appearing for the appellant submits that the impugned order is not sustainable in the law as the same has been passedwithout properly appreciating/interpreting the exemption Notification No. 01/10-CE : MANU/EXCT/0004/2010 dated 06.02.2010. He further submitted that the respondents are not entitled to the benefit of the said notification on the basis of para 8(b)(i) of the said notification. He further submitted that taking the depreciated value of plant & Machinery would go against the spirit of the said notification. He also submits that when notification is silent as to whether depreciated value or original value of the plant and machinery is to be considered for computing 25% limit, one has to look at the intention of notification and take a view in accordance with its intention.
5. He further submits that both the authorities below have not examined the notification in its proper perspective. He further submits that the present case is not a case relating to expansion of capacity but a case whether existing product has been replaced by a new product and therefore the respondents are not entitled to the benefit of notification 01/10-CE : MANU/EXCT/0004/2010 dated 06.02.2010.
6. On the other hand, the respondent has filed the cross objections which are on record and as per the respondent both authorities below have properly examined the applicability of notification 01/10-CE : MANU/EXCT/0004/2010 dated 06.02.2010 and found that the respondents are entitled to the benefit of the said notification. Further, as per the cross objections the respondent has stated that para 8(b)(i) of the said notification stipulates that substantial expansion must be for the purpose of expansion of capacity or modernization and diversification.
7. After Considering the submission of the Ld. AR and the cross objections filed by the respondent we find that both the authoriti........