2023 (8) TMI 740 - AT - Central Excise

Refund of the excise duty paid in cash - error in interpreting the conditions of Notification No. 20/07-CE dated 25.04.07 - New Industrial Unit in terms of the notification or not - commencement of commercial production w.e.f. 11.04.2007 or not. HELD THAT - The Appellant has been availing the benefit of exemption notification 32/99-CE and filing refund claim under the said notification. The new registration was taken under the old name with the same PAN number. The ownership and control has changed. It is observed that the change in ownership and control alone not sufficient to consider them as a new industrial unit, for the purpose of availing the benefit of the notification 20/2007-CE dated 25.04.2007 - It is observed that the Appellant has taken a new registration after surrendering the old one and started manufacturing a new product. This issue was not before the lower authority. Accordingly, the Commissioner (Appeals) has rightly rejected their appeal. The Appellant has filed a refund in terms of Notification 32/99-CE dated 8/7/99, which was sanctioned as claimed by them. Hence, for all intents and purposes, it is clearly evident and beyond doubt that they have sought the benefit of the said Notification alone from the Lower Authority and not the benefit of any other Notification, including the said later Notification 20/2007-CE dated 25.04.2007. Accordingly, the Appellant has not claimed the benefit of the Notification 20/2007-CE from the lower authority and hence, they are not eligible to avail the benefit of this notification. Whether the Appellant has started a new industrial unit and commenced its commercial production on 11.04.2007? - HELD THAT - The Appellant has been availing the benefit of the exemption notification 32/99-CE and claiming refund as envisaged in the said notification, w.e.f. 08.11.2002 . The benefit of this notification is valid for a period of 10 years. Thus, even after change of management and product line in the unit, they continued to avail the benefit of the same notification from the earlier date of commencement of commercial production ie, w.e.f. 08.11.2002. Just because there is a change in the management and product line within the same factory, it cannot be called a new unit which commenced its production w.e.f. 11.04.2007. The benefit of the exemption under notification 32/99-CE was given to a new unit or an existing unit which has undertaken 25% installed capacity on or after 24.12.1997. The new notification 20/2007 also has similar clauses to be fulfilled for considering a unit set up in the specified area as a new industrial unit under this notification. Thus, for considering a unit as a new unit eligible for exemption under this notification, commercial production must have been commenced after 01.04.2007, for a new industrial unit or at least 25% addition in the value of fixed capital investment in plant and machinery for the purpose of expansion of capacity/modernization and diversification should have taken place and commercial production should have commenced from such expanded capacity on or after the 1st day of April, 2007 but not later than 31st day of March, 2017. No such verification has been undertaken on the unit claimed to be a new unit by the Appellant on account of change in the management and manufacturing a new product namely, plastic chairs from the same old premises. As the Appellants were already availing the benefit of exemption notification 32/99-CE for the unit located in the same premises, it cannot be considered that a new unit has come up in the same premises under a new ownership. The Appellant has not applied for a new unit with proper authority to determine the new unit satisfies all conditions to consider it as a new unit. Surrendering the old central excise registration and taking a new registration alone not sufficient to consider that the Appellant has commenced a new industrial unit - the Appellant s unit cannot be considered as a new unit which has commenced its commercial production w.e.f. 11.04.2007. Appeal dismissed - impugned order upheld.

Summary

Issues involved:
The issues involved in the judgment are:
1. Whether the Appellant is eligible for the benefit of Notification 20/2007-CE dated 25.04.2007?
2. Whether the Appellant has started a new industrial unit and commenced its commercial production on 11.04.2007?

Issue 1: Eligibility for Notification 20/2007-CE:
The Appellant filed a refund claim under Notification 32/99-CE and was granted the refund as claimed. The Commissioner (Appeals) rejected their appeal urging to declare the date of commercial production as April 2007 instead of November 2002. The Appellant had never raised this issue before the lower authority. The Appellant did not claim the benefit of Notification 20/2007-CE from the lower authority and hence, they are not eligible to avail its benefit.

Issue 2: Commencement of a New Industrial Unit:
The Appellant claimed to have set up a new industrial unit starting commercial production on 11.04.2007. However, it was observed that despite a change in ownership and product line, the Appellant continued to avail the benefit of the exemption notification 32/99-CE from the earlier date of commercial production in November 2002. The new notification 20/2007-CE has specific conditions for considering a unit as new, including commencement of commercial production after April 2007. As there was no verification on the unit claimed to be new, it was held that the Appellant's unit cannot be considered as a new unit starting production in April 2007.

Conclusion:
The Appellant's appeal was rejected, upholding the impugned order. The Appellant was not eligible for the benefit of Notification 20/2007-CE dated 25.04.2007, and their unit was not considered a new industrial unit commencing production in April 2007.