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TMI Blog2024 (11) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... ng substantial questions of law: "A. Whether Hon'ble CESTAT has erred in law in holding that obtaining fresh license by the respondent after ban was lifted by the Hon'ble Supreme Court on the basis of the report of the High Power Committee amounts to establishment of new industry and entitled to benefit of Notification dated 25.04.2007. B. Whether the findings of the LD Tribunal is perverse in holding the newly established industry, whereas admittedly 'M/s Sarda Plywood Industries Ltd, Jeypore is an old wood-based plywood industry, functioning at Jeypore prior to the ban imposed by the Apex Court." 5. On a subsequent date, the learned counsel appearing for the sole respondent put in appearance and submitted that this Court vide order dated 08.12.2023 had framed substantial questions of law without providing any opportunity of hearing to the respondent and even without issuing notice to the respondent. It was argued on behalf of the respondent that whether the respondent industrial unit is a new industry or an old one is purely a question of fact and since as many as three statutory authorities have already decided the issue against the Revenue while recording a specific find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund in terms of notification No.20/2007 CE dated 25.04.2007, as amended. On examination of the documents viz. the certificate issued by the Directorate of Industries & Commerce, Dibrugarh, Assam, D.S.A. Register and from Central Excise Invoice No.001 dated 09/11/2009, I find that the assessee's unit is a new industrial unit which commenced commercial production after the 1st day of April 2007. I have verified and found that the unit has commenced commercial production on 14/10/2009 and they have affected first clearance on 09/11/2009 which are evident from the DSA Register and from Central Excise Invoice No.001 dated 09/11/2009 respectively. I, therefore, find that the unit of the assessee is eligible for exemption under clause 5(a) of the notification No.20/2007-CE dated 25.04.2007, as amended. *** *** *** 12. In view of aforementioned facts, circumstances & amendment made in the notification No.20/2007-CE dated 25.04.2007 by the notification No.20/2008-CE dated 27.03.2008 and notification No.38/2008-CE dated 10.06.2008, I find that the assessee M/s Sarda Plywood Industries Ltd. having its factory at Jeypore, Naharkatia, Dist-Dibrugarh, is eligible for refund of duty under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all means as discussed in the brief facts. 7. In these circumstances, it is not apprehensible as to how the Department has interpreted that the present unit in the same premises is the old, the discontinued & the closed business reintroduced 'Renovation' & 'refunctioning' words used by the Department in the appeal are misleading and the appeal is the product of misconception of the facts. 8. Irrespective of the above findings on general eligibility of the notification to the respondent, I do not feel it necessary to interfere with the impugned order not granting the benefit of Notification No.20/2007-CE dated 25/04/2007 to the respondent for the reason that the condition of first utilizing the Cenvat credit to the full extent of duty chargeability has not been fulfilled (Para-12 of the Order-in-Original). Accordingly the Department's appeal is rejected upholding the impugned order." 9. Being aggrieved with the order passed by the Commissioner (Appeals), the Revenue preferred an appeal before the CESTAT, Kolkata. However, the said appeal also came to be dismissed by the CESTAT, Kolkata, vide order dated 15.06.2023, while affirming the order dated 02.08.2012 passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, is not a sufficient ground to claim that the unit is only a renovated one. Renovation is generally understood to be the refurbishing of the premises and not the fresh establishment of industry with fresh clearances from all the concerned Departments including the fresh Central Excise registration after commissioning new machinery after a long gap of closing the old unit by all means as discussed in the brief facts. 7. In these circumstances, it is not apprehensible as to how the Department has interpreted that the present unit in the same premises is the old, the discontinued & the closed business reintroduced 'Renovation' & 'refunctioning' words used by the Department in the appeal is the product of misconception of the facts.' 7. We have gone through the finding of the Ld. Commissioner (Appeals) in the impugned order and the documents placed before us, which are evident that the respondent has established a new unit although at the same site. 8. In that circumstances, we do not find any infirmity in the impugned order and we hold that the respondent is entitled for benefit of exemption Notification No.20/ 2007-CE dated 25.04.2007. In that circumstances, the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 13. We have considered the submissions made by the learned counsel appearing on behalf of the parties and have perused the material available on record. 14. First of all, it is to be clarified that this Court has framed substantial question of law No. (A) to the effect as to whether the CESTAT has erred in law in holding that obtaining fresh licence by the respondent after ban was lifted by the Hon'ble Supreme Court on the basis of the report of the High Power Committee amounts to establishment of new industry and entitled to benefit of the Notification dated 25.04.2007. However, from a bare perusal of the order of the CESTAT it is more than clear that the CESTAT has not held that the respondent has obtained a fresh licence after the ban had been lifted by the Hon'ble Supreme Court on the basis of the report of the High Power Committee and, therefore, is entitled to benefit of the Notification dated 25.04.2007. In such circumstances, the substantial question of Law No. (A), as framed by this Court is factually incorrect. 15. So far as the substantial question No. (B) is concerned, in the facts and circumstances of the case it cannot be held that the finding recorded by the CES ..... X X X X Extracts X X X X X X X X Extracts X X X X
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