TMI Blog2018 (10) TMI 957X X X X Extracts X X X X X X X X Extracts X X X X ..... orted was cleared by the appellant after 31.03.2010. The same was not the subject matter of the show cause notice to deny exemption to the appellant. In that circumstances, the evidence gathered after issuance of the show cause notice cannot be subject matter of the case in hand - the evidence gathered after issuance of the show cause notice cannot be taken on record and the same are beyond the allegation made in the show cause notice. When the appellant filed the declaration with the department on 21.03.2010 and till 31.03.2010, the departmental officers have taken not any pain to visit the appellant s factory, therefore, the benefit of doubt goes in favour of the appellant. The order of the adjudicating authority is restored - appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than 31st day of March, 2010 (b) industrial units existing before 07/1/03 in areas mentioned in Annexure II, but which have undertaken substantial expansion by the way of increase in installed capacity by not less than 25% on or after 07/1/03, and have commenced commercial production from such expanded capacity not later than 31/3/10 . 1.3 The appellant claim to be the unit covered by Clause (a) of para 2 of the notification which was a new unit set up after 07/1/03 and which according to the appellant had commenced commercial production on or before 31/3/10. Since, there was a doubt as to whether the unit had commenced commercial production on or after 31/3/10, the unit was visited by the Jurisdictional Central Excise officers on 04 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chinery. On scrutiny of the records of the appellant, it appeared that cable plant had arrived in the factory on 26/6/10 and certain furnace parts had arrived on 19/3/10. It also found that while manufacture of aluminium sheets/coils is a continuous casting process which involves installation of certain critical machinery of the casting furnace, holding furnace, casting unit and rolling unit, the machinery placed inside the factory premises had either not been installed or was not in working condition. 1.4 It was found that though the appellant had shown sale of 3.48 MT of aluminium sheets to M/s Shirdi Sales, follow up inquiry with M/s Shirdi Sales revealed that they were dealing in particle boards and medium density fibre board and Dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter, the appeal filed before this Tribunal and this Tribunal remanded the matter back to the adjudication authority vide order dated 24.06.2015. In remand proceedings, the directions of this Tribunal were followed and the adjudicating authority held that the appellant is entitled for exemption Notification No. 49/50-CE dated 10.06.2003. But on appeal filed by the Revenue before the Ld. Commissioner (A), the exemption was denied, therefore, the appellant is before us. 4. The ld. Counsel for the appellant submits that while remanding in the earlier round of litigation, this Tribunal gave certain directions for cross examination of Shri. Dinesh Sharma, Supervisor of the appellant company and also the Member Secretary, Single Window Clearanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factured by the appellant. Moreover, the appellant procured the raw material after 31.03.2010. He further submits that the machinery itself was imported by the appellant in the month April, then how the appellant manufactured the goods before 31.03.2010. 6. Heard the parties and considered the submissions. 7. On careful consideration of submissions made by both the sides, we find that while remanding the matter this Tribunal has given the following direction: 12. In view of the above discussion, the impugned order is set aside. The matter is remanded to the original Adjudicating Authority for denovo adjudication. In course of denovo adjudication, the adjudicating authority must examine Shri. Dinesh Sharma, Supervisor of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter issuance of the show cause notice cannot be subject matter of the case in hand before us. Therefore, the evidence gathered after issuance of the show cause notice cannot be taken on record and the same are beyond the allegation made in the show cause notice. On said ground, we do not find any merit in the impugned order. 10. Further, we find that during the cross examination, the Member Secretary and Shri. Dinesh Sharma has clearly stated that the commercial production has started on 30/31-03-2010, therefore, the said evidence is admissible to decide the issue. 11. We further take note of the fact that when the appellant filled the declaration with the department on 21.03.2010 and till 31.03.2010, the departmental officers have t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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