2018 (4) TMI 1391 - HC - Central Excise

Whether the conditions prescribed for availing the benefits of N/N. 9/99 not being fulfilled can it be held that the appellant or the assessee was availing the benefit of the N/N. 9/99? - Held that - there are findings of fact recorded against the assessee and even otherwise the assessee had availed benefits under the N/N. 9 of 1999 for a part of the year and it was not open to him to switch over to another notification - conclusion drawn by the Tribunal is right and justified - appeal dismissed.

Summary

Issues:
1. Interpretation of conditions for availing benefits under notification no.9/99.
2. Mandatory nature of conditions under notification no.9/99.
3. Binding effect of trade notice issued by the Commissioner.

Interpretation of conditions for availing benefits under notification no.9/99:
The appeal under Section 35-G of the Central Excise Act, 1944 was filed against the CESTAT order. The main issue revolved around whether the appellant fulfilled the conditions for benefiting from notification no.9/99. The Tribunal found that the assessee had indeed availed benefits under the said notification by making clearances at a concessional rate of duty. Despite later seeking exemption under notification no.8 of 1999, the assessee was bound by the initial choice made under notification no.9 of 1999. The Tribunal's conclusion was based on factual findings against the assessee, leading to the dismissal of the appeal.

Mandatory nature of conditions under notification no.9/99:
The Tribunal emphasized that once an assessee exercises an option under notification no.9 of 1999, they cannot switch or change during that year. The assessee's attempt to argue non-compliance with the terms of the notification after receiving benefits was deemed invalid. The Court held that since the assessee had availed benefits under notification no.9 of 1999 for a part of the year, switching to another notification was not permissible. The Tribunal's decision was upheld, highlighting the mandatory nature of adhering to the chosen notification's conditions throughout the specified period.

Binding effect of trade notice issued by the Commissioner:
The question arose regarding the binding nature of a trade notice issued by the Commissioner at Mumbai on all Commissionerates. The Court did not delve deeply into this issue as the primary focus was on the assessee's compliance with the conditions of the notifications. Consequently, the appeal was dismissed, with the questions of law answered against the assessee and in favor of the revenue. The judgment did not provide further clarification on the broader implications of the trade notice issued by the Commissioner.

In conclusion, the High Court upheld the Tribunal's decision, emphasizing the importance of adhering to the conditions of notifications once opted for, and dismissing the appeal filed by the assessee under Section 35-G of the Central Excise Act, 1944.