TMI Blog2010 (5) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... Rakesh Kumar, Member (T) REPRESENTED BY : Shri B.L. Soni, SDR, for the Appellant. Shri P. Sharma, Advocate, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President (Oral)]. - Having heard the learned D.R. and the learned Advocate for the respondents at length, we propose to dispose of the appeals themselves. Hence, the applications are disposed off. 2. Since common questions of law and facts arise in all these appeals they were heard together and are being disposed of by this common order. 3. These appeals arise from order dated 16-2-2009 passed by the Commissioner (Appeals), Chandigarh whereby appeals filed by the respondents against the order of the adjudicating authority were allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants factory had commenced from 26th August, 2006. 5. The adjudicating authority rejected the said claim on the ground that the Range Officer under his letter dated 31-1-08 had stated that commencement of production was from 20-12-2006 in terms of TMT certificate issued by the General Manager, DIC, Kathua and, therefore, the benefit of exemption notification would not be admissible prior to that date and refund claim, therefore, would not be granted. Being aggrieved, the respondents preferred appeals before the Commissioner (Appeals). By the impugned order the Commissioner (Appeals) held that monthly returns filed by the respondents for the month of September, October and November, 2006 disclosed figures of production and clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about the date of commencement of production and in the case in hand such a certificate issued by the competent authority disclosed commencement of commercial production from 20-12-2006. Attention was drawn to the decision of the Tribunal in the matter of Suvi Cement Indus. Pvt. Ltd. v. CCE, Jammu, reported in 2007 (216) E.L.T. 455 (Tri. -Del.). 7. On the other hand, learned Advocate for the respondents drawing attention to the copies of the returns filed by the respondents for the month of September, October and November submitted that the returns clearly disclose the quantity of goods produced as well as the assessable value thereof which would clearly disclose that by no stretch of imagination the production in the months of Sep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption contained in the said notification shall apply to any of the units for a period not exceeding 10 years and 10 years should be counted from the publication of the said notification in the official gazette or from the date of commencement of production which ever is earlier. In other words clause (4) merely states that the period of ten years for the benefit under the notification should be counted from the date of publication of notification or from the date of commencement of the production, and nothing beyond that. 10. The question as to whether the manufacturer has commenced the production in the factory or not is essentially a matter of fact which is to be ascertained by taking into consideration the date of actual product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dustries stating that the production had commenced from 20-12-2006 could reject the claim of the respondents. 11. The decision of the Tribunal in Suvi Cement Indus. Pvt. Ltd. is of no help to the appellants. The said decision nowhere lays down any proposition of law as such. The decision is entirely based on factual matrix of the said case and it is evident from para 8 of the said decision which read thus :- "We do not find any valid reason to go behind the correctness of the said certificate which records the fact that the appellant could not produce the cement and put it to commercial sale in absence of BIS Certificate. It also appears that only ad hoc permission was granted by the Ministry of Industries and Commerce under the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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