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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 ..... t 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 as framed by this Court is factually incorrect. 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? - HELD THAT:- It cannot be held that the finding recorded by the CESTAT to the effect that the respondent has established a new industrial unit is perverse. The Assistant Commissioner and the Commissioner (Appeals) as well as the CESTAT have recorded their findings after taking into consideration the materials, which suggest that the respondent has established a new industrial unit, although on the same site. The Revenue has failed to produce any evidence contrary to the findings arrived at by the Assistant Commissioner and the Commissioner (Appeals) as well as the CESTAT, or in support of its stand that the respondent has not set up a new factory but has only renovated its old factory. The materials available on recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of fact and since as many as three statutory authorities have already decided the issue against the Revenue while recording a specific finding of fact that the respondent unit is a new industry, it is clear that no substantial question of law is involved in this appeal. 6. The brief facts of the case are that on 29.12.2009, the respondent, which is an industrial unit, moved an application before the authority concerned for availing the benefit of tax exemption under the Notification No. 20/2007-CE dated 25.04.2010, as amended. The Assistant Commissioner of Central Excise and Service Tax, Dibrugarh, decided the said application vide order dated 21.04.2010 while holding that the respondent unit is eligible to avail the benefit of exemption under the said notification, but refused to grant the benefit of exemption to the respondent on the ground that sufficient CENVAT credit was available to the respondent unit on the first day of the month under consideration for payment of duty on goods. While passing the order dated 21.04.2010, the Assistant Commissioner recorded a fining to the effect that the respondent unit is a new industrial unit. The relevant observations made by the Assist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arda Plywood Industries Ltd. having its factory at Jeypore, Naharkatia, Dist-Dibrugarh, is eligible for refund of duty under Notification No.20/2007-CE dated 25.04.2007 but as the assessee has sufficient Cenvat Credit available to them unutilized at the end of the month under consideration, therefore, there refund for the month of Nov. 2009 is NIL in terms of principal notification No.20/2008-CE dated 25.04.2007. 7. The operative portion of the order dated 21.04.2010 is also reproduced hereunder: ORDER I find that M/s Sarda Plywood Industries Ltd; Jeypore, Naharkatia, Dist-Dibrugarh is eligible to avail the exemption benefit under Notification No.20/2007-CE dated 25.04.2007, but as the assessee has sufficient CENVAT credit available to him on the last day of the month under consideration for payment of duty of goods, therefore, the refund sanctioned for the month of Nov 2009 is NIL as laid down in terms of the notification No.20/2007-CE dated 25.04.2007, as amended, inter alia, by notification No.20/2008-CE dated 27.03.2007 and notification No.38/2008-CE dated 10.06.2008. 8. Being aggrieved with the order dated 21.04.2010, thus, the Revenue preferred an appeal before the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , vide order dated 15.06.2023, while affirming the order dated 02.08.2012 passed by the Commissioner (Appeals). While dismissing the appeal, the CESTAT, Kolkata has observed as under: 6. On perusal of the records placed before us we find that it is a fact on record that the unit of the respondent was functional prior to 12.12.1996, when the ban was imposed on the industry of the appellant. Thereafter the appellant surrendered their factory licence on 10.01.2002 and also surrendered their Central Excise registration on 10.04.2003. Moreover, machinery was also transferred to the Rajkit (Gujarat) factory and list of the machinery was also produced before us. Some plant and machinery was sold by the appellant, that details thereof was also placed on record. Director, Shri M.P. Pariwal also resigned on 20.03.2004 from Board of Directors. Thereafter, the appellant has obtained licence from office of the Divisional Forest Officer, Dibrugarh, Assam vide letter dated 06.08.2008, wherein it has been mentioned that in pursuant of the above, a fresh licence is being issued to your industry bearing No.Sl.No.DIB/PLY/JEIPORE/IE/21 dated 05.08.2008. The Ld. Counsel produced registration and licenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7-CE dated 25.04.2007. In that circumstances, the impugned order is upheld and the appeal filed by the Revenue is dismissed. The order dated 15.06.2023, passed by the CESTAT, Kolkata, is impugned in the present appeal. 10. Learned counsel appearing for the Revenue has argued that M/s Sarada Plywood Industries Limited (now M/s Duroply Industries Limited) was an old wood based industry functioning at Jeypore, Naharkatia, prior to the ban imposed by the Hon ble Supreme Court vide order dated 12.12.1996, passed in WP(C) No. 202/95-TN. However, subsequently the said industry was inventoried and cleared by the High Power Committee constituted by the Hon ble Supreme Court and was made eligible to re-operate with certain conditions. Though the industry did surrender its factory licence (registration) in the year 2002, but applied for fresh registration, as required and, accordingly, it was issued a fresh registration by the competent authority on 28.04.2009. It is contended that the respondent had simply surrendered its licence and applied for a fresh factory licence to operate as per the order of the Hon ble Supreme Court. It is argued that just because the industry had obtained a fresh l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be held that the finding recorded by the CESTAT to the effect that the respondent has established a new industrial unit is perverse. The Assistant Commissioner and the Commissioner (Appeals) as well as the CESTAT have recorded their findings after taking into consideration the materials, which suggest that the respondent has established a new industrial unit, although on the same site. The Revenue has failed to produce any evidence contrary to the findings arrived at by the Assistant Commissioner and the Commissioner (Appeals) as well as the CESTAT, or in support of its stand that the respondent has not set up a new factory but has only renovated its old factory. 16. The materials available on record reveal that the Assistant Commissioner, after visiting the respondent factory and after inspecting the documents, recorded a specific finding that the respondent unit is a new industrial unit which commenced commercial production after 01.04.2007. Apparently, the said finding of fact is based on the material and has rightly not been interfered with by the Commissioner (Appeals) as well as by the CESTAT. 17. In view of the above discussion, we are of the view that no substantial ..... X X X X Extracts X X X X X X X X Extracts X X X X
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