2010 (4) TMI 641 - HC - Central Excise

Area based exemption - Expansion of existing unit - Notification No. 49/2003 and 50/2003 Dt. 10.06.2003 - Held that - From the factual position noticed in paragraph 11 of the instant order, it is clear that the appellant had contacted M/s Steamatic Resources on 10.07.2002 for the proposed expansion. Whereupon a contract was executed for the installation and commissioning of the expansion for a total consideration of Rs. 4 lacs, out of which a sum of Rs. 50,000/- was paid by the appellant to M/s Steamatic Resources by way of advance. M/s Steamatic Resources commenced the expansion work in the first week of November, 2002. By 18.12.2002, the components supplied by M/s Thermax Ltd. had been duly installed. Based on the aforesaid facts, it is clear that the appellant had commenced its expansion before the industrial / incentive policy was made public through the Office Memorandum dated 07.01.2003 and the notification dated 08.01.2003. Thus viewed, even the Office Memorandum dated 07.01.2003 and the notification dated 08.01.2003, relied upon by the learned counsel for the appellant, cannot lead to the conclusion, that any impression could have been gathered by the appellant, that substantial expansion envisaged by the policy would be relevant to any expansion carried out prior to 07.01.2003. In view of the above, we have no hesitation to conclude, that the appellant cannot claim any benefit under the industrial policy issued by the Government.

Summary

Issues Involved:
1. Eligibility for exemption under Notifications Nos. 49/2003-Central Excise and 50/2003-Central Excise.
2. Interpretation of the phrase "have undertaken" in the notifications.
3. Applicability of the Board's circular dated 09.07.1999.
4. Interpretation of the industrial policy and its applicability to the case.

Issue-wise Detailed Analysis:

1. Eligibility for Exemption:
The appellant sought exemption under Notifications Nos. 49/2003-Central Excise and 50/2003-Central Excise, dated 10.06.2003, for its industrial unit manufacturing uncoated craft paper located in Uttarakhand. The Tribunal denied the exemption because the appellant had undertaken the expansion of the existing installed capacity prior to 07.01.2003. The Tribunal concluded that the appellant was not entitled to the exemption as the expansion program had commenced before the stipulated date.

2. Interpretation of the Phrase "Have Undertaken":
The appellant argued that the phrase "have undertaken substantial expansion" should be interpreted to mean that the expansion could begin before 07.01.2003, as long as it was completed after that date. The court, however, determined that the notifications clearly required the expansion to commence on or after 07.01.2003. The court emphasized that the intention of the notifications was to incentivize new expansions initiated after the specified date, and the appellant's expansion, having started before 07.01.2003, did not qualify.

3. Applicability of the Board's Circular:
The appellant referenced a Board's circular dated 09.07.1999, which interpreted a similar notification to mean that the increase in capacity should be effective on or after a specific date. The court held that a departmental clarification cannot override the clear intent of a notification issued under Section 5A(1) of the Central Excise Act, 1944. Furthermore, no such clarification was issued for the notifications in question. The court rejected the appellant's reliance on the circular, maintaining that the clear language of the notifications must prevail.

4. Interpretation of the Industrial Policy:
The appellant contended that the excise exemptions should be read in conjunction with the industrial policy under which they were granted. The court examined the industrial policy and the definitions provided in the notifications dated 07.01.2003 and 08.01.2003. It concluded that the term "substantial expansion" was defined to apply to expansions after 07.01.2003. The court found no basis for the appellant's claim that the policy created an impression that pre-07.01.2003 expansions would qualify for exemptions. The court emphasized that the appellant's expansion activities commenced before the policy was made public, thus disqualifying them from the exemptions.

Conclusion:
The court dismissed the appeal, upholding the Tribunal's decision that the appellant was not entitled to the exemption under Notifications Nos. 49/2003-Central Excise and 50/2003-Central Excise, as the expansion commenced before the stipulated date of 07.01.2003. The court's interpretation of the notifications and the industrial policy was based on the clear language and intent to incentivize new expansions initiated after the specified date.