9911796707
TMI Blog2017 (12) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... and the appellant became eligible for such benefit. From the SCN as well as the impugned order we do not find that any verification of the machines actually installed and working in the unit has been carried out. Further, the entire case has been build up on the basis of the statements of the suppliers of plant and machineries. In the absence of any documentary corroboration as such the statements cannot be admitted as gospel truth. The evidence on record would not justify the withdrawal of the benefit which was extended only after careful consideration and inspection of the factory at the relevant time - appeal allowed - decided in favor of appellant. - Appeal No. E/446/2008 - Order No. FO/78328/17 - Dated:- 30-11-2017 - Dr. Sat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actory was established at the cited address was found to be false in as much as the invoices under which it was claimed that various items of machineries were purchased, were found to be fake and fabricated. Accordingly, the Adjudicating Authority ordered for recovery of the refund of about ₹ 66 .00 lacks along with interest and penalty of actual amount. Aggrieved by the impugned order the present appeal has been filed. 2. With the above background we heard Mrs. C.Alam, Advocate for the Appellant and Shri A.Roy, Suptd.(AR) for the Respondent. 3. The investigation under taken by the department revealed that prior to 24.12.1997, an industrial unit by the name M/s. Polyplast Products, a proprietary firm was functioning at the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oy the benefit of the area based exemption under Notification No. 32/99-CE dated 08.07.1999 vide the Deputy Commissioners order dated 10.12.2002 w.e.f. 12.02.2002. However, the department has failed to challenge the said order of the Deputy Commissioner by filing appeal before the Commissioner (Appeals) by taking recourse to review of the order as provided under Section 35E of the Central Excise Act, 1944. In the absence of review the appellant is entitled to such benefit. (ii) The department has alleged that plant and machineries were not procured by the appellant but only the existing machineries of the proprietary concern were put to use in the appellants unit. But such allegations are made only on the basis of the statements of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant. During the course of investigation, Shri Rishi Gupta, Managing Director of the appellant submitted a list of machineries dated 18.09.2002 alongwith copies of the relevant invoices/bills and claimed that these machineries were procured in the year 2000 and installed in the factory premises before commencement of the manufacturing unit of the appellant. With the help of jurisdictional Central Excise Authorities, the department carried out investigation during which the bills were found to be fabricated and false and further that no machineries were supplied to the appellant under the respective bills. On the basis of such investigation it was concluded that no new unit was set up and no substantial expansion was also undertaken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carried out either before grant of the exemption or soon there after. It is surprising to see that investigation has proceeded, not on the basis of the list of machines originally declared by the appellant but by the subsequent list obtained from appellant. 9. It has been observed by the Adjudicating Authority that the appellant has made use of plant and machineries originally installed; When the erstwhile unit M/s. Polyplast Products were functioning at the same premises. However, this appears to be nothing but a blank statement in as much as no investigation has been done into the list of machineries installed and working at the time when M/s. Polyplast Products was functioning and whether such machineries were still found at the time ..... X X X X Extracts X X X X X X X X Extracts X X X X
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