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TMI Blog2013 (4) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... he benefit of Notification. In these circumstances we find no infirmity in the impugned order thereby the benefit of Notification is denied, the appeal is dismissed. - Decided against the assessee. - 12 of 2009 - - - Dated:- 28-6-2012 - A.K. Goel, C.J. and Ujjal Bhuyan, J. REPRESENTED BY : Dr. S. Chakraborty and Shri D.P. Borah, Advocates, for the Appellant. Shri R. Dubey, S.C., Central Excise, for the Respondent. [Judgment per : Ujjal Bhuyan, J.]. This is an appeal under Section 35G of the Central Excise Act, 1944 against the order dated 2-3-2009 [2009 (243) E.L.T. 65 (Tri. - Kolkata)] passed by the Customs, Excise Service Tax Appellate Tribunal, East Zonal Bench, Kolkata (the Tribunal) in Excise Appeal No. E/A-285/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by his appellate order dated 27-3-2008 rejected the appeal holding that there was no infirmity in the order passed by the adjudicating authority. 7. The appellant filed further appeal before the Tribunal, which as indicated above, was dismissed by the order dated 2-3-2009. 8. Aggrieved, the appellant is in appeal before this Court. 9. This Court by the order dated 18-11-2009 admitted the appeal on the following proposed substantial questions of law : 1. Whether the trial production undertaken in course of development of the plant in terms of the contract of the Railways can be termed as Commercial Production as stipulated under Clause-2 of the North East Industrial and Investment Promotion Policy, 2007 contained in the Office Me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SO has rendered the order of the learned Appellate Tribunal perverse occasioning violation of the mandates of section 35B 35C of the Central Excise Act, 1944? 10. Heard Dr. S. Chakraborty, learned counsel for the appellant. Also heard Mr. R. Dubey, learned standing counsel, Central Excise. 11. Learned counsel for the appellant submits that the issue involved in the appeal is whether the appellant had commenced commercial production in January, 2007 or in June 2007. According to the learned counsel for the appellant, the materials on record clearly shows that all production carried out by the appellant prior to June, 2007 were trial production and not commercial production. He submits that trial production and commercial production ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be eligible to the benefits under the notification dated 25-4-2007. According to him, no substantial question of law arises in this appeal and, therefore, the same should be dismissed. 13. The rival submissions have been duly considered. 14. The adjudicating authority on scrutiny of the returns filed and the other documents held that the appellant had started Commercial Production on 1-2-2007. The following is the finding of the adjudicating authority : On scrutiny of the copies of the RG-1 and ER-1s submitted by M/s. Railtrack Concrete Production Pvt. Ltd., it is seen that they have started their commercial production on the 1st day of February 2007. Whereas Notification No. 20/2007-C.E., dated 25-4-2007 stipulates vide clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Road, P.O. Bihara, PIN-788817 Cachar, Assam is found not iligible for benefit of exemption in terms of Notification No. 20/2007-C.E., dated 25-4-2007. As such, I reject their application dated 10-8-2007. 15. In the appeal before Commissioner (Appeals), the Commissioner held that both the appellant and the department had agreed that production commenced during February, 2007 but the only dispute was as to whether the said production could be termed as commercial production. The Commissioner found that the product produced during February, 2007 fetched a commercial consideration of Rs. 28.5 lakhs. Therefore, such production was held to be commercial production. The following is the relevant portion of the order of the Commissioner (Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et to be approved by the competent authority of the Railways. The Revenue however contended that commercial production had commenced in January, 2007, which was reflected in the excise returns and other documents. The Tribunal on consideration of the rival contentions recorded the finding that the appellant had manufactured 4900 railway sleepers valued at Rs. 28.5 lakhs in the month of January, 2007 and cleared to the railways, which was reflected in the record and the returns submitted. The Tribunal held as follows : 5. . In the present case the Appellant manufactured 4900 railway sleepers valued at Rs. 28.5 Lakhs, in the month of January 2007 and cleared to Railways. This production quantity was reflected in RG-1 record and ER-1 re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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