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2020 (3) TMI 524 - AT - Central ExciseRefund granted under N/N. 39/2001-CE dated 31.07.2001 - recovery of refund sought on the ground that the production of these products were not started on declared dated 14.01.2005 - also alleged in SCN that the plant and machinery certified by the committee does not include the plant & machineries subsequently installed and used for the manufacture of subject goods. HELD THAT:- The Ld. Commissioner in the adjudication order regarding the factual aspect that whether the plant and machinery were installed as on 31.12.2005 only relied upon the Assistant Commissioner’s order in an identical case, however, he has not verified the facts on the basis of documents that whether the machineries were installed as on 31.12.2005. The finding of the Commissioner with reference to the Board Circular dated 10.07.2008 to the extent that even if the production is started after the date i.e. 14.01.2005, but if the Plant and Machinery were installed as on 31.12.2005, the benefit of the notification 39/2001-CE is prima facie available appears to be prima facie correct. The learned adjudicating authority decided the entire matter relying on the Tribunal’s remand order dated 27.10.2015. The period of that case was different from the period of this case therefore facts of each case must be verified independently - The adjudicating authority has not verified the facts in the context of this case. The vital fact which needs to be verified is that whether the goods on which exemption was claimed were manufactured from the plant & machinery installed prior to the commencement of production thereof i.e. 14.01.2005 or they were installed after 14.01.2005. The matter needs re-examination - appeal allowed by way of remand.
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