2013 (10) TMI 565 - AT - Central Excise

Area based exemption - Exemption under Notification No. 50/2003 Commencement of Production - Whether the appellant had commenced commercial production prior to 31.03.2010, so as to earn the exemption in terms of the notification Stay - Held that - the commencement of commercial production means starting of the manufacture of the finished products on commercial scale, which is preceded by trial production and installation of complete plant & machinery and on that day the plant must be ready in all respects for manufacture of finished product in commercial quantity and all raw materials, consumables, etc. required for manufacture are available. When as on 31.3.2010 soldering paste/wire, an important input for mounting components on the printed circuit board was not there and pneumatic screw drivers required for fixing screws mechanically were also not available as a result of which the screws could be fixed only manually, it is doubtful as to whether the commercial production could be started on that day. Moreover, in this case, there is no dispute that as on 31.3.2010, there was neither any manufacture of finished products nor any such manufacture had been recorded in the RG -I register and Shri Sunil Bhardwaj in his statement dated 17.4.2010 has categorically stated that they have not started maintaining any-stock register for finished products as no production was undertaken by them till date, which shows even till 17.4.2010 and there was no production. - prima facie case is not in favor of assessee - 50% of the demand ordered to be deposited - stay granted partly.

Summary

Issues Involved:
1. Whether the appellant commenced commercial production before 31.03.2010 to qualify for exemption under Notification No. 50/2003-CE.
2. Whether the appellant is entitled to a waiver of the pre-deposit requirement.

Issue-wise Detailed Analysis:

1. Commencement of Commercial Production:
The primary dispute revolves around whether the appellant commenced commercial production before the cut-off date of 31.03.2010 to avail the exemption under Notification No. 50/2003-CE. The appellant claimed to have started production on 30.03.2010 and filed a declaration on 31.03.2010. The adjudicating authority, however, relied on the statement of the appellant's Accountant, who indicated that only trial production had occurred by 17.04.2010 and statutory records had not been maintained. The authority also noted the absence of essential materials like soldering paste and equipment like pneumatic screwdrivers by 31.03.2010, concluding that commercial production had not commenced.

The appellant countered that the absence of a pneumatic screwdriver and soldering paste did not preclude the commencement of production, arguing that manual methods could suffice. They emphasized that the notification required only the "commencement" of production, not the completion of fully finished products. The appellant also presented a letter from the Regional Manager, State Infrastructure and Industrial Development Corporation of Uttarakhand Limited, dated 31.03.2010, confirming that commercial production was observed on 30.03.2010.

2. Waiver of Pre-deposit Requirement:
The appellant requested a waiver of the pre-deposit of duty and penalties imposed. The adjudicating authority initially denied this, citing the statement of the Accountant and the lack of essential materials and equipment as evidence that commercial production had not started by the required date. The appellant argued that the letter from the State Infrastructure and Industrial Development Corporation was a strong piece of evidence supporting their claim of commencing production on 30.03.2010.

Separate Judgments:
- Member (Judicial): Agreed with the appellant, emphasizing the letter from the State Infrastructure and Industrial Development Corporation as strong evidence of commencement of production. This member noted that the expression in the notification was "commencement" of production, not the completion of fully finished products. Consequently, they favored waiving the pre-deposit requirement entirely.

- Member (Technical): Disagreed, emphasizing the lack of essential materials and equipment, and the statement of the Accountant, which indicated no production had started by 17.04.2010. This member argued that the letter from the State Infrastructure and Industrial Development Corporation was not produced during the initial inspection and questioned its validity. They concluded that the appellant had not established a prima facie case and ordered a pre-deposit of 50% of the duty.

Final Order:
Due to the difference in opinions, the matter was referred to a third member. The third member agreed with the Technical Member, concluding that the appellant had not established a prima facie case for a full waiver. Therefore, the final order directed the appellant to deposit 50% of the duty within 8 weeks, with the matter set for compliance verification on 21.11.2013.