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TMI Blog2023 (11) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... e is absolutely no evidence of visit of the Central Excise Officer as neither any documentary evidence nor panchnama was recorded about visit of the factory. Therefore, such observation of the Commissioner appears without any basis. Since the entire case is based on the assumption that the pulping machine was not installed but the department could not adduce any evidence to this allegation. The sole basis of the department to hold that the appellant did not have pulping machine is the correspondence made with the supplier of pulping machine but no reply was received from the pulping machine supplier - Merely because the department could not get the response that itself will not conclude that the appellant have not purchased the pulping m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant are not eligible for exemption. 2. Shri R Subramanya, Learned Counsel appearing on behalf of the appellant submits that the appellant have produced various documentary evidence to show that the appellant were having pulping plant. However, brushing aside all the documentary evidence, the Adjudicating Authority has held that the appellant did not have the pulping plant without any basis, therefore, the exemption wa denied. 2.1 He invited our attention to the finding of the Adjudicating Authority. particularly Para 28 of the impugned order that though the Adjudicating Authority has recorded that during the course of audit and visit by the Central Excise officers to the unit and further investigation, it appeared that the notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n No. 08/2003-CE dated 01.03.2003 as amended (SSI exemption) during this period. Now the question comes as to whether Noticee has fulfilled the conditions of the said Notification or otherwise. The Audit team has raised objection as stated above and thereafter inquiry was conducted by the Department as to whether there is any violation of the condition of the Notification. During the course of Audit and visit by the C. Excise officers to the unit and further investigation, it appeared that the Noticee has not installed pulping machine in their factory premises during the relevant period, hence manufacture form the stage of pulp to the final product is not possible in the said factory premise. Therefore they have violated the basic condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not get the response that itself will not conclude that the appellant have not purchased the pulping machine. In this position, it was incumbent on the department to physically verify, whether the pulping machinery installed in the appellant s factory is of the relevant period which department failed to do such exercise. 4.3 In this fact of the case, we are of the prima facie view that the appellant did have the pulping machine at the relevant time. However, since the revenue has not carried out any verification, one opportunity is given to the Revenue to conduct the detail verification that the pulping machine was installed at the relevant point of time in the factory of the appellant or otherwise. Thereafter, to pass a denovo spea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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