2013 (5) TMI 404 - AT - Central Excise

Notification No. 73/90 CE Benefit denied Manufacture of goods by asseesee and clearance at concessional rate as per notification - As per revenue assessee has not eligible for the benefit of notification because - (i) Assessee contravened the provisions of rule 52A, 173C and 173G of Central Excise Rules 1944. (ii) Certificate issued by the Chief General Managers of concerned circles furnished by the assessee is not a valid certificate as envisaged in the notification 73/90 (iii) Assessee have suppressed the material facts and accordingly proviso to Sec. 11A(1) of the Act has been invoked. Held that - There is no merit in the contentions of revenue. The prime idea of concessional rate of duty in terms the said notification is that the goods are used for Rural Telecommunication. In the absence of any dispute about the same, the timing of issuance of certificate cannot be made the basis for denial of substantive benefit, otherwise available to the assessee. Revenue has raised a contention that the goods mentioned in the said certificate were not the goods cleared by the respondent. However the certificate issued by GM (Development) Bihar Circle, Patna refers to the Purchase Orders issued by Department of Telecommunication which interalia contains the quantity of goods and its technical specification. Similarly, the certificate issued by Chief General Manager in the issue Gujarat Telecom Circle, Ahmedabad refers to the details of the Purchase Orders. Therefore revenue grievance cannot be up held. It is however seen that the certificates are issued in May 1992 and in September 1992 whereas, the clearances had been effected during the period from January 1993 to March 1994. As such even the said condition of the notification stand fulfilled. Thus, there is no infirmity in the order of Commissioner (Appeals). The appeal is accordingly rejected.

Summary

Issues:
1. Contravention of provisions of Central Excise Rules
2. Validity of certificates issued by Chief General Managers
3. Allegation of suppression of material facts and invocation of Sec. 11A(1) of the Act

Issue 1: Contravention of provisions of Central Excise Rules
The appellants were engaged in manufacturing Multi Access Rural Radio Equipments and 8 channel wire carrier equipments, availing a concessional rate of duty under notification No. 73/90. The issue arose when they were accused of not producing the required certificate from an officer not below the rank of General Manager in the Department of Telecommunications, as mandated by the notification. The appellants argued that they had fulfilled the obligations by submitting necessary certificates and complying with Rule 173 C of the Central Excise Rules. The Commissioner (Appeals) held that the penal action proposed for the alleged violations of the rules was not warranted as the appellants had met the conditions specified in the notification for availing the concessional rate of duty.

Issue 2: Validity of certificates issued by Chief General Managers
The Commissioner (Appeals) examined whether the certificates issued by the Chief General Managers of concerned circles were valid as per the requirements of notification 73/90. The certificates were supposed to confirm that the goods were intended for the establishment of rural telecommunication networks. While the revenue contended that the certificates were issued after the goods were installed and functioning, the Commissioner found no merit in this argument. It was noted that the certificates contained details of purchase orders, quantity, and technical specifications, fulfilling the conditions of the notification. Despite the timing of issuance being before the clearance of goods, the substantive benefit available to the assessee could not be denied based solely on the timing of certificate issuance.

Issue 3: Allegation of suppression of material facts and invocation of Sec. 11A(1) of the Act
The issue of suppression of material facts and the invocation of Sec. 11A(1) of the Act was raised by the revenue. However, the Commissioner (Appeals) concluded that since the case did not stand on merit and the prescribed returns were submitted on time, the suppression clause did not apply. The demand for duty was found to be barred by limitation as the respondent had filed necessary declarations and returns, and the longer period for raising the demand was not available to the revenue. Consequently, the order of the Commissioner (Appeals) was upheld, and the appeal was rejected by the Tribunal.

This detailed analysis of the legal judgment showcases the examination of each issue involved, the arguments presented by the parties, and the final decision rendered by the Commissioner (Appeals) and the Tribunal.