TMI Blog2023 (10) TMI 1162X X X X Extracts X X X X X X X X Extracts X X X X ..... nding of Commissioner (Appeals). There are no merits in this appeal which could have been dismissed for the amount involved being less than prescribed threshold limit under litigation policy. Appeal filed by the revenue is dismissed. - HON BLE MR. P.K. CHOUDHARY, MEMBER (JUDICIAL) And HON BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri Sandeep Pandey, Authorised Representative for the Respondent Shri Atul Gupta, Advocate Shri Prakhar Shukla, Advocate for the Appellant ORDER P. K. CHOUDHARY : The facts of the case in brief are that the Respondent had set up its factory at Plot No.32 Sector-4,III, SIDGUE Pantnagar, in the state of Uttarakhand in May 2009, for manufacture of Safety Head Gear. The first commercial production commenced from May, 2009 and the unit was granted registration with District Industries Centre on 30.06.2009 after necessary physical verification of the unit. The Government vide Notification No.50/2003-CE dated 10.06.2003 provided exemption from payment of central excise duty to goods cleared from industrial unit in the states of Uttarakhand and Himachal Pradesh for a period of ten years from the date of commencement of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.2011, the Department filed an appeal before the learned Commissioner (Appeals), Meerut-II and Respondent have filed cross objection. Pursuant to Review Order No.V(15)REV/OIO/M-II/879/11 and merely repeating allegations of the show cause notice as contentions of their appeal. Vide impugned Order-in-Appeal dated 30.01.2012 the learned Commissioner (Appeals) rejected the Department s appeal, observed that the adjudicating authority rightly allowed the benefit of exemption to the Respondent. Being aggrieved by the impugned Order-in-Appeal pursuant to Review Order dated 26.04.2012 the Department is in appeal before the Tribunal. 3. The learned Departmental Representative reiterated the grounds of appeal and submitted that the adjudicating authority has erred in granting exemption of Notification No.50/2003-CE dated 10.06.2003. It is the case of the Department that the exemption Notification No.50/2003-CE was not available to the assessee inasmuch as they had not fulfilled the mandatory condition of the notification that the unit must have commenced its commercial production on or before 31.03.2010. He further argued that the order passed by the learned Commissioner (Appeals) is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a family member of a worker, others also visited his house), the factory was not working on the first occasion. Subsequently, due to the dispute raised by the department, the Respondent was in dilemma to continue the manufacturing or to abandon future production and close the factory and thus the factory was not working. 7. The learned Assistant Commissioner duly considered and examined all the said evidences while granting the benefit of exemption to the Respondent and the same was upheld by learned Commissioner (Appeals) due to absence of any cogent or corroborative evidence placed by department to the contrary. 8. Heard both sides and perused the appeal records. 9. From the Order-in-Original and Order-in-Appeal we find that both the authorities have considered the evidence produced and concluded that commercial production was started prior to 31.03.2010. Relevant aspect from the order of Original Authority is reproduced below:- A Constitutional Bench of Hon'ble Supreme Court in their judgement in the case of Commissioner of Central Excise, New Delhi v/s Hari Cand Shri Gopal and Ors. [2010 (260) ELT 0003] held that:- 22. The law is well settled that a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainly on the ground that the unit was found closed by the officers of the Central Excise at the time of their visit in the unit on 07.04.2010 and the subsequent visit report of the jurisdictional Range Superintendent dated 16.11.2010. It has further been pleaded that there was no commercial production before 31.03.2010, which was the primary condition for the exemption under the said Notification. Relying on these grounds the department has sought for setting aside the impugned order in the instant appeal. I find that the department could not put forth any cogent and corroborative evidence to show that there was no commercial production in the unit on or after 07.01.2003 but not later than 32.03.2010. From the case record, I observe that the Respondents produced several documents before the adjudicating authority in support of their claim for the exemption under Notification No.50/03-CE dated 10.06.2003. The submitted the copies of the purchase bills for plant and machinery, NOC dated 15.04.2009 issued by the Pollution Control Department, electric meter sealing certificate, purchase bills for the raw materials, photographs showing inspection by the officers of Industry Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X
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