V.K. Ashtana, Member (T)
1. The simple point in this appeal against Order-in-Appeal No. 75/96 dated 23-10-1996 is whether the certificate on the installed production capacity of the cement manufacturing unit signed by an officer lower than the rank of the Director of Industries shall satisfy the requirements of Notification No. 24/91 dated 25-7-1991 for the purpose of availing concessional exemption of duty?
2. Heard Shri J. Sankarraman, learned advocate for the appellants, who submits that the said certificate was issued by the Office of the Director of Industries and was signed by the Joint Director in the absence of the Director, who was out of town. Me submits that later the said certificate was countersigned by the Director in person, after he was available in his office. This was on 23-8-1992. He further submits that this issue has come before the Tribunal for the second time as vide earlier remand order of the Tribunal for necessary verification regarding the fact whether the Joint Director has delegated his responsibility by the Director in the Directorate of Industries office concerned was not got verified. On the contrary, it has been held in the order impugned that as the first certificate was countersigned belatedly and also the subsequent certificate only signed by the Director of Industries submitted for the relevant period is issued belatedly, therefore, on these two grounds, concession in the Notification has been denied to them. In this connection, he cites the decision of the Tribunal in the case of Shyam Oil Cake (P) Ltd. v. CCE as reported in 1997 (92) E.L.T. 425 (T) wherein it has been held that non-production of required certificate at the stage of clearance of goods or original adjudication is not a ground for barring the assessee from the benefit of Notification containing such a condition provided the certificate is subsequently produced and covers the period and quantity of the product in dispute. He also cites the decision of the Tribunal in the case of CCE v. Lyphin Chemicals as reported in 1996 (88) E.L.T. 147 (T) = 1996 (17) RLT 147 (CEGAT), wherein it has been held that a certificate required to be issued by the Drugs Controller but issued by the Deputy Drugs Controller shall be deemed to be a certificate issued by the Drugs Controller, because the reference to the Drugs Controller in Notification shall be construed to mean that Office of the Drugs Controller hence, the benefit of Notification is not deniable. He submits that these two decisions squarely apply to the facts of the case and hence prays for consequential relief.
3. Heard Sri S. Kannan, learned D.R., who reiterates the Order-in-Appeal and also submits that unusual delay has been occurred during the consideration of this matter on de novo basis, as ordered by the Tribunal. This delay was because despite repeated opportunities, the assessees were not in a position to produce before the first appellate authority the certificate required from the Directorate of Industries.
4. On this point, the learned advocate submits that the original certificate signed by the Joint Director and ultimately countersigned by the Director was produced before the first appellate authority. However, now they are in the possession of original certificate signed by the Director itself relating to the same period as the original certificate related.
5. We have carefully considered the rival submissions and records of the case and find that the matter was remanded by the Tribunal to afford an enquiry on the question of whether the Joint Director of Industries had been delegated the responsibility to sign such certificates on behalf of the Director during his absence. A perusal of the records of the case shows that unfortunately such an enquiry was not caused by the Revenue. However, the assessees on their own initiative approached the Directorate of Industries and got the certificate signed by the Joint Director, again countersigned by the Director, who had happened to return to duties by that time. Before us, in their appeal, the appellants have also now furnished a fresh certificate signed by the Director of Industries Bangalore, dated 29-7-1997, which has been issued in lieu of the earlier certificate dated 23-8-1992 in favour of the appellants clearly specifying that their annual capacity is as per the limits laid down in the said Notification, and that it qualifies as a mini cement plant using rotary kiln technology. We find that in view of the earlier certificate having been countersigned by the Director of Industries himself as well as now being replaced by a new certificate mentioned above which is also signed by the Director of Industries, it is now established beyond doubt that the capacity and the nature of the plant and equipment of the appellants unit qualifies with the requirements of the said exemption Notification. We also find that the issue regarding the availability of the certificate subsequently has been looked into by the Tribunal in the case of Shyam Oil Cake (P) Ltd. v. CCE cited supra, wherein the Tribunal had held that even if such a certificate is produced subsequent to the date of clearance, substantive exemption in the Notification cannot be denied. We find that in this case subsequently the certificate issued on 29-7-1997 is in lieu of the one issued on 23-8-1992 and therefore, it is for the period covered by the earlier certificate. Hence, the facts of this case are pari materia with the facts of the case considered in Shyam Oil Cake (P) Ltd. cited supra. We also find that the aforesaid findings are supported by the decision of the Tribunal in the case of Lyphin Chemicals (supra), wherein the reference to the Drugs Controller was held to be meaning of the Office of the Drugs Controller and if the same principle is applied to the subject Notification, then the Notification would require a certificate from the Office of the Director of Industries and it is nobody’s case that the Joint Director of Industries was not working in the Office of the Director of Industries.
6. Therefore, respectively applying the ratio of both these decisions to support our own conclusion, the order impugned is set aside and the appeal is allowed with consequential relief, if any, as per law.