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2016 (10) TMI 762 - AT - Central ExciseArea based exemption - Eligibility of benefit of N/N.50/2003-CE dated 10.6.2003 - whether the appellant did not commence commercial production on or before 31.3.2010 and benefit of notification can be denied to him? - Held that: - construction activity in the factory was not in progress. It was found not fit even to keep the machines therein. This will indicate that whatever production shown to have happened on 30/31-3-2010 cannot be considered as commercial production as the machine was not fit enough for such operation. Even after 3 weeks of commencing commercial production, the physical condition of the manufacturing unit was found to be in incomplete status. The windows, walls, floor were in unfinished condition. This aspect is not contested by the appellant also. Such being the position even after three weeks of the cut off date, it will test the reason to conclude that commercial production and activity on the Three Layer Blow Film machine was in stream before 31.3.2010. The plant itself is of substantial size and is not in complete state . It is without roof and not apparently ready for commercial production with such new machinery. The appellant claim to have produced 750 kgs. of poly film on 31.3.2010, quarterly return for the period ending on 31.3.2010 indicated only production of 117 kgs. Such contradiction in the statutory records raised a serious doubts about authenticity of commercial production. The original authority recorded that three layer blow film plant was not at all even in functional stage as on 31.3.2010. The said plant had to be completely dismantled by the supplier later. Time bar - Held that: - the claim made by the appellant about commercial production on 31.3.2010 was found to be on the basis of mis-represented facts. In such situation, notice issued to demand duty as a consequence of such mis-representation is to be issued within five years in terms of Section 11A(1) of the Act. Accordingly, no infirmity found on this ground. Appeal dismissed - benefit of notification denied - decided against appellant.
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