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TMI Blog2015 (12) TMI 1619X X X X Extracts X X X X X X X X Extracts X X X X ..... 31-3-2010, therefore, we hold that the appellant is entitled for the benefit of Notification No. 49/50-2003-C.E., dated 10-6-2003. Appeal allowed - decided in favor of appellant. - E/51812-51813/2015-EX(DB) - Final Order Nos. 265 & 265-A/2016-CHD - Dated:- 15-12-2015 - Shri Ashok Jindal, Member (J) and Raju, Member (T) Shri P.K. Mittal, Advocate, for the Appellant. Shri B.B. Sharma, AR, for the Respondent. ORDER [Order per : Ashok Jindal, Member (J)]. - The appellant has filed these two appeals against the impugned order wherein the exemption under Notification No. 49/50-2003-C.E., dated 10-6-2003 (area based exemption) was denied to the appellant. The appellant also filed miscellaneous application to produce add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10.50 pm. It was alleged that the appellant was not in a position to produce bars. Therefore, it was alleged that the appellant was not able to commence commercial production on or before 31-3-2010. Consequently, the appellant is not entitled for the benefit of under Notification No. 49/50-2003-C.E., dated 10-6-2003. He has not fulfilled the conditions of the said notifications. Consequently, two show cause notices were issued to the appellant to deny the benefit of exemption and to demand of duty for the period March, 2010 to December, 2010 and January, 2011 to November, 2011 on 16-5-2011 and 3-2-2012 respectively. Both lower authorities denied the benefit of exemption notifications. Consequently, the demand of duty was confirmed. Aggrieve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Guwahati High Court in the case of Rail Track Concrete Production (P) Ltd. v. CCE, Guwahati - 2012 (286) E.L.T. 30 (Gau.). The appellant is entitled to avail the benefit of exemption notifications. 5. On the other hand, learned AR opposed the contention of the learned Counsel and submitted that their production manager has himself stated in his statement that they had trial production on 31-3-2010 and the same cannot be treated as commercial production. He further submitted that as crucial part of the machinery passed taxation barrier at 10.50 pm, no production could take place in the factory premises of the appellant. Therefore, the adjudicating authority has rightly denied the benefit of exemption notifications. For the remaining iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellant has commenced the production on the said date. To support his contention, the learned counsel has relied upon the decision of this Tribunal in the case of Vaibhav Ispat Pvt. Ltd. v. CCE, Meerut [Final Order No. 51590/2015, dated 12-5-2015] [2015 (329) E.L.T. 255 (Tribunal)]. The relevant portion of Paras 8 and 10 is reproduced below :- 8. ..However, we find that while on one hand, the Department alleges that there was no production of M.S. Ingots during the last week of March, 2010, on the other hand, the show cause notice issued to the appellant has also demanded duty of ₹ 90,805/- on 30.4 MTs. of M.S. Ingots cleared during March, 2010 and this duty demand is included in the duty demand of ₹ 5,27,66,984/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the clearances made from 1-4-2010 are to be charged to duty as they are manufactured by the respondent, the commercial production would have certainly commenced prior to that date. the manufacturing activity was started on 31-3-2010. 10. Now the issue is before us is whether they have commenced the commercial production on or before 31-3-2010 or not. 11. We take note that in the case of Rail Track Concrete Production (P) Ltd. (supra), Hon ble Guwahati High Court has dealt with the issue of commercial production wherein it has been held as under :- 14. 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 on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng I find no infirmity in the order passed by the adjudicating authority and I see no reason to interfere with the order. Accordingly the appeal is rejected. 12. In this case also, the appellant has cleared the goods on commercial consideration and the production of goods is not in dispute. The appellant has sold the goods against consideration therefore, the clearance made by the appellant qualifies the definition of commercial production in the light of the decision of Hon ble Guwahati High Court in the case of Rail Track Concrete Production (P) Ltd. (supra). 13. As the appellant has commenced the commercial production on 31-3-2010, therefore, we hold that the appellant is entitled for the benefit of Notification No. 49/50-2003-C.E ..... X X X X Extracts X X X X X X X X Extracts X X X X
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