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Lucky Tex International, Sandeep Kumar, Partner Versus C.C.C.E. & S. Tax, Dehradun

2016 (10) TMI 762 - CESTAT NEW DELHI

Area 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 .....

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e 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 .....

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ground. - Appeal dismissed - benefit of notification denied - decided against appellant. - Central Excise Appeal No.51357-51358 of 2016 - Final Order No. 54099 -54100/2016 - Dated:- 17-10-2016 - Dr. Satish Chandra, President And Mr.B. Ravichandran, Technical Member Shri K.K. Anand, Advocate for the appellant-assessee Shri R.K. Manjhi, A.R. for the respondent/Revenue ORDER B. Ravichandran These appeals are against the impugned order dated 29.1.2016 of Commissioner Central Excise, Dehradun. 2 .....

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n the present case is that the main appellant did not commence commercial production on or before 31.3.2010. After completion of inquiry and proceedings were initiated by issuing show cause notice dated 18.4.2015.The notice proposed recovery of ₹ 5,05,58,056/- towards duty on goods cleared from April 2010 to December 2014 as the main appellant did not qualify to claim exemption under above said Notification. Proposal to impose various penalties was also made. The case was adjudicated. The .....

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ed upon the statement of Shri Saurabh Kansal which was totally uncorroborated . On the date of his statement, he was no longer authorized signatory for the main appellant. The denial of opportunity of cross-examination and non-adhering to the provision of Section 9D of the Central Excise Act, 1944 clearly violates the principles of natural justice. (b) The physical verification of the main appellants main unit was done on 23.4.2010 which is much after cut-off date 31.3.2010. But the officers sho .....

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oly film on 31.3.2010. The statement of Shri Saurabh Kansal has no relevancy as the production of excisable goods prior to 31.3.2010 has been established on the basis of documentary as well as physical evidence. The notice invoking extended period is time barred. The investigation by the Department started 23.4.2010 whereas the notice was issued on 17.3.2015.The appellants have been filing statutory returns properly. Penalties imposed on the appellants are not legally sustainable. 4. Ld. A.R. su .....

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Notification No.50/2003-CE. 5. We have heard both sides and perused the appeal records. We note that the present case of the Revenue is not based on the statement of Shri Saurabh Kansal alone. If at all, only certain corroborations have been taken from the facts recorded therein. A perusal of the appeal records indicates that the said Shri Kansal was supposed to have been terminated from the service on 23.1.210 and with effect from 24.2.2010 one Shri Shailendra Kumar Pandey was appointed as auth .....

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tever indicated by Shri Kansal was further corroborated by various other independent evidences collected from various sources. Hence we find that to cross-examine or otherwise Shri Kansal cannot be considered as vital point impinging on principle of natural justice. Shri Sandeep Kumar in his statement dated 14.10.2010 clearly stated that after undertaking trial production on 30.3.2010 and 31.3.2010 the machine was found not well balanced/aligned and therefore, to get it rectified, the same was d .....

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sale of excisable goods. The evidences collected by Revenue indicated that the goods covered by the invoices were actually obtained from job work/purchased by the main appellant. The question of job work undertaken by M/s Pioneer Industries was also admitted by the partner of the main appellant. The verification done by the officers in the premises of the main appellant s unit on 23.4.2010 was contested by the appellant. On the other hand, we note that even after 3 weeks of commencing commercial .....

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thout roof and not apparently ready for commercial production with such new machinery. 7. We also note that though 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 o .....

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