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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 ..... r Plastic Film liable to central excise duty. The main appellant claimed exemption in terms of Notification No.50/2003-CE dated 10.6.2003 which, among other things provided exemption to new industrial unit to 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 Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial production and not commercial production. (d) The appellant had manufactured 730 kgs. of plain poly film on 31.3.2010. The statement of Shri Saurabh Kansal has no relevancy as the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to cross-examine or otherwise Shri Kansal cannot be considered as vital point impinging on principle of natural justice. Shri Sandeep Kumar in his statement dated 14.10.2010 clearly 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 bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iginal authority recorded that three layer blow film plant was not at all even in functional stage as on 31.3.2010.The said plant had to be completely dismantled by the supplier 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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