2011 (3) TMI 1287 - AT - Central Excise

Application for stay - exemption notification No. 58/2003-C.E. dated 22-7-2003 - no proper service about the hearing of the matter - Held that - As no affidavit filed by the inward clerk or the officer of the appellant-company stating that he had received the letter from the postal authorities on the particular date and at the particular time - Considering the provisions of law envisaged under Section 114 of the Evidence Act read with Section 21 of General Clauses Act 1897 it is to be presumed that the postal authorities had delivered the letter on 26-11-2010 to the addressee The law in granting the benefit to the SEZ developers was introduced with effect from 31-12-2008 as it was published in the Official Gazette in December 2008. In the circumstances therefore it cannot be accepted that the SEZ developers were also entitled for the benefit which the SEZ units were entitled to prior to 31-12-2008. The relevant period in the case the goods in hand from June 2008 to October 2008 it was obviously prior to 31-12-2008 being so the question of finding fault with the impugned order or accepting the contention of the appellants does not arise - Appeal is dismissed

Summary

Issues Involved:
Application for recall of order dated 30-11-2010 in stay application No. 1830/09 based on grounds of improper service and merit of the case.

Analysis:

Improper Service Ground:
The appellants filed an application for the recall of the order dated 30-11-2010 on the grounds of improper service, claiming they received the notice on the same day of the hearing at 1630 hrs, leaving no fair opportunity to appear. However, the Department contended that the notice was sent by speed post and reached the destination on 26-11-2010, contradicting the appellants' claim. The Tribunal analyzed the evidence, including Exhibit-B, and concluded that the notice was received on 26-11-2010, as per postal records. The Tribunal applied the provisions of the Evidence Act and General Clauses Act to presume delivery on 26-11-2010, dismissing the appellants' contention of late receipt on 30-11-2010.

Merit of the Case:
Regarding the merits, the appellants argued a strong case based on Circular No. 29/2006-Cus., dated 27-12-2006, claiming the demand was not sustainable. However, the Department argued that the amendment benefiting SEZ developers was effective from 31-12-2008, not covering the period in question (June 2008 to October 2008). The Tribunal referred to precedents like Surya Roshni Ltd. v. CCE, Rohtak and highlighted the distinction between SEZ units and developers. The appellants' invoices showed supply to SEZ developers, not units, leading to the denial of benefits. The Tribunal emphasized that the law extending benefits to developers was post-December 2008, thus rejecting the appellants' claim for the benefit. Consequently, the Tribunal found no grounds to recall the order dated 30-11-2010, dismissing the application.

In conclusion, the Tribunal upheld the original order, emphasizing proper service of notice and the lack of merit in the appellants' case. The judgment clarified the legal provisions regarding SEZ units and developers, applying relevant precedents and statutory provisions to reach a definitive decision on the recall application.