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TMI Blog2016 (10) TMI 762X X X X Extracts X X X X X X X X Extracts X X X X ..... nufacturing unit was found to be in incomplete status. The windows, walls, floor were in unfinished condition. This aspect is not contested by the appellant also. Such being the position even after three weeks of the cut off date, it will test the reason to conclude that commercial production and activity on the Three Layer Blow Film machine was in stream before 31.3.2010. The plant itself is of substantial size and is not in complete state . It is without roof and not apparently ready for commercial production with such new machinery. The appellant claim to have produced 750 kgs. of poly film on 31.3.2010, quarterly return for the period ending on 31.3.2010 indicated only production of 117 kgs. Such contradiction in the statutory record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set up in specific areas which have commenced commercial production on or after 7th day of January 2003 but not later than 31.3.2010. The dispute in the present case is that the main appellant did not commence commercial production on or before 31.3.2010. After completion of inquiry and proceedings were initiated by issuing show cause notice dated 18.4.2015.The notice proposed recovery of ₹ 5,05,58,056/- towards duty on goods cleared from April 2010 to December 2014 as the main appellant did not qualify to claim exemption under above said Notification. Proposal to impose various penalties was also made. The case was adjudicated. The original authority held that the main appellant is not eligible to exemption and confirmed the duty dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he production of excisable goods prior to 31.3.2010 has been established on the basis of documentary as well as physical evidence. The notice invoking extended period is time barred. The investigation by the Department started 23.4.2010 whereas the notice was issued on 17.3.2015.The appellants have been filing statutory returns properly. Penalties imposed on the appellants are not legally sustainable. 4. Ld. A.R. supported the findings of the lower authorities and submitted that factual position of commercial production by the main appellant on or before 31.3.2010 has been examined by the original authority before arriving at the conclusion. The findings are not based only on statement of Shri Kansal. Enough material are available with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly stated that after undertaking trial production on 30.3.2010 and 31.3.2010 the machine was found not well balanced/aligned and therefore, to get it rectified, the same was dismantled to avoid damage due to dust etc. The admitted position is that construction activity in the factory was not in progress. It was found not fit even to keep the machines therein. This will indicate that whatever production shown to have happened on 30/31-3-2010 cannot be considered as commercial production as the machine was not fit enough for such operation. 6. Invoices No.1 2 both dated 31.3.2010 were relied on by the main appellant to make the claim of commercial production and sale of excisable goods. The evidences collected by Revenue indicated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er later. The statement given by the officer of M/s Kabra Extrusion Technik Limited repeatedly mentions trial production undertaken on 31.3.2010 and 10.4.2010 . Upon such testing, plant was found not suitable for regular manufacturing activity accordingly had to be dismantled. Later, after relaying necessary foundation, the same was commissioned again on 30.4.2010. It is relevant to note that appellant did not claim any depreciation on the capital goods for the year 2009-2010 for I.T. purposes. The original authority inferred that the said asset was not used as on 31.3.2010.The original authority also dealt with the veracity of certificate given by the Chartered Engineer. We have taken note of the finding at para 6.20.6 of the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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