TMI Blog2014 (11) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, they had manufactured small quantity instead of using the main plant for large scale manufacture. When the fact of commencement of production of the final product and its sale stands accepted by the department, even if the production was by using the alternate method not declared to the department, the benefit of the exemption cannot be denied. - they have strong prima facie case in their favour - Stay granted. - Appeal No.E/58331 of 2013-EX(DB) - Stay Order No. 52936 - Dated:- 28-7-2014 - Smt. Archana Wadhwa and Shri Rakesh Kumar, JJ. For the Appellant : Shri B.L. Narsimhan, Advocate For the Respondent: Ms. Shweta Bector, DR ORDER Per Rakesh Kumar: 1.1 The appellant are engaged in the manufacture of polym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk of 2000 litres capacity. On this basis that a show cause notice dated 5.3.2012 was issued to the appellant that they are not eligible for the benefit of the exemption under notification no.50/2003-CE inasmuch as they did not commence commercial production on or before 31.3.2010 and accordingly, the show cause notice sought recovery of the duty of ₹ 72,19,776/- from them for the period from April, 2010 to September, 2011 along with interest thereon under Section 11AB of the Central Excise Act and sought imposition of penalty under section 11AC of the Central Excise Act, 1944. 1.2 This above show cause notice was adjudicated by the Commissioner vide order-in-original dated 30.03.2013 by which the above mentioned duty demand was co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption cannot be denied. He, therefore, pleaded that the impugned order is not sustainable, that the appellant have strong prima facie case in their favour and therefore the requirement of pre-deposit of duty demand, interest and penalty may be waived for hearing of their appeal, and recovery thereof may be stayed. 4. Ms. Shweta Bector, ld. Departmental Representative opposed the stay petition by reiterating the findings of the Commissioner and emphasized that for the benefit of the exemption, the appellant should have commenced the commercial production on or before 31.3.2010 by using the plant and machinery declared by them in their declaration and if the appellant have shown commercial production by using some alternative method wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders. Thus, they have suppressed the material fact of non-use of the plant and machinery declared in the declaration dated 15.03.2010 for commencement of commercial production in order to avail the exemption from payment of duty and as a consequence have rendered themselves liable for penalty under Section 11 AC of the Act. 7. In para 5.14 of the impugned order, the Commissioner has given a finding that it is evident that the unit did not use the declared plant and machinery for production of the goods and instead used alternative method, which they did not declare to the department in the declaration filed on 15.3.2010. 8. Thus, from the above finding of the Commissioner the fact that there was commercial production in the factory in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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