ORDER
C.N.B. Nair, Member (T)
1. Notification No. 50/2003-C.E., dated 10-6-2003, as amended from time to time, exempted goods specified and cleared from a unit located in the industrial growth centre or industrial infrastructure development centre etc. etc. The exemption was available only to new industrial units which have commenced commercial production on or after 7-1-2003 or industrial units existing before 7-1-2003 but which have undertaken substantial expansion by way of increase in installed capacity by not less than 25% on or after 7-1-2003.
2. The appellant in the present case claimed the exemption notification in regard to LPG cylinders and ACSR conductors. Under the impugned order that claim remains rejected mainly on the ground that the expression “unit” in the notification meant “factory” and that the appellant did not qualify for the exemption when their production is measured as from a factory.
3. The contention of the ld. Counsel for the appellant is that the Commissioner is in error in equating ‘unit’ with industry/factory inasmuch as it is well settled Devidayal Electronics & Wires Ltd. v. Union of India that unit only means plant and building used exclusively for the manufacture of the goods in question. The ld. Counsel has also referred to the judgment of the Supreme Court in the case, of CCE v. Himalayan Co-op. Milk Products Union Ltd. and submitted that the view taken by the Bombay High Court in the case of Devidayal Electronics remains upheld by the Supreme Court.
4. In the light of the aforesaid judgments, the view taken by the Commissioner cannot prevail.
5. Another objection taken by the Commissioner, in regard to the exemption for ACSR conductors, is that the appellant had started production and clearance before 7-1-2003 and, therefore, they could not be treated as a new unit. The records of the case show that the production before 7-1-2003 was very small and was arising from trial production and not commercial production. As already noted, the exemption notification specifically mentioned “comments their commercial production”. It is, thus, clear from the terms of the notification itself that what is contemplated in the notification is ‘commercial production’ and not trial production. Accordingly, the view of the Commissioner that the appellant’s ACSR production was not from a new unit also cannot find acceptance.
6. The impugned order also notes certain changes in names in support of the denial of exemption. This would not also appear to be justified inasmuch as the khashra numbers mentioned in the notification are the sites where the appellant’s factory is located.
7. In the result, prima facie, the order of the Commissioner is not sustainable. The stay applications are allowed and recovery stayed till the disposal of the appeals.
(Dictated & pronounced in open Court on 9-10-2006)