9911796707
TMI Blog2013 (5) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... fication and cleared from a unit located in the Industrial Growth Centre or Industrial Infrastructure Development Centre or Export Promotion Industrial Park or Industrial Estate or Industrial Area or Commercial Estate or Scheme Area, as the case may be, specified in Annexure-II and Annexure-III to this notification are exempted from the whole of the duty of excise or additional duty of excise as the case may be, leviable thereon under Section of Central Excise Act, 1944, Additional Duties of Excise (Goods of Special Importance) Act, 1957 and Additional Duties of Excise (Textiles and Textile Articles) Act, 1978. This exemption is subjected to certain conditions mentioned in para 1 of the notification which are as under :- (1) The manufacturer who intends to avail of the exemption under this notification shall exercise his option in writing before effecting the first clearance and such option shall be effective from the date of exercise of the option and shall not be withdrawn during the remaining part of the financial year. (2) The manufacturer shall, while exercising the option under condition (i) mentioned above, inform in writing to the jurisdictional Deputy/Assistant Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner vide order-in-original dated 14-11-2011 by which the duty demand of Rs. 1,37,60,266/- was confirmed against the appellant-company under proviso to Section 11A(1) of Central Excise Act, 1944 along with interest only under Section 11AB ibid. A penalty of equal amount was imposed on the appellant-company under Section 11AC and besides this, while penalty of Rs. 5 lakh was imposed on Shri Shantanu Sangi, Director of the appellant-company under Rule 26 ibid penalty of Rs. 50,000/- was also imposed on Shri Mahendra Kumar Jain, Works Manager-cum-Authorised Representative of the appellant-company under the same Rule. The goods valued at Rs. 36,70,277/- were ordered to be confiscated under Rule 25 with option to redeem the same on payment of redemption fine in lieu of confiscation of Rs. 9,17,570/- in terms of Section 34 of Central Excise Act, 1944. 1.5 Against the above order of the Commissioner, these appeals have been filed along with the stay applications. 2. Heard both sides in respect of the stay applications. 3. Shri Amit Jain, Advocate, the learned Counsel for the appellants, pleaded that there is no dispute that the goods being manufactured by the appellant are not covered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, extended period of limitation under proviso to Section 11A(i) cannot be invoked, that for the same reason, the penal provisions under Section 11AC are not applicable, that in this, regard, he relied upon the judgment of the Apex Court in the case of CCE v. Chemphar Drugs & Liniments - 1989 (40) E.L.T. 276 (S.C.); that there is absolutely no justification for imposition of penalty of Rs. 5 lakh on Shri Shantanu Sangi, Director of the appellant-company, that the appellant have a strong prima facie case and hence the requirement of pre-deposit of duty demand, interest and penalty may be waived for hearing of the appeals and recovery thereof may be stayed till disposal of the appeals. 4. Shri Devender Singh, learned Joint CDR opposed the stay application reiterating the findings of the Commissioner in the impugned order and pleaded that it is well settled law that when an exemption notification subject to certain conditions, non-fulfilment of condition would result in denial of exemption, that an exemption notification has to be strictly construed, that the condition of filing declaration as mentioned in para 1 of the notification cannot be said to be mere procedural requirement, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nium Co. Ltd. v. Thane Municipal Corporation - 1991 (55) E.L.T. 454 (S.C.) has held that when the exemption notification is subject to observance of some condition and non-observance of that condition is likely to facilitate commission of fraud and introduce administrative inconveniences, the exemption would not be available if the condition has not been fulfilled and such condition cannot be treated as mere a procedural condition. In this case, the purpose of condition regarding declaration to be filed to the jurisdictional Central Excise Officers is to ascertain as to whether the assessee is eligible for exemption or not as exemption is dependent upon various parameters - (a) whether the goods manufactured are other than those specified in Annexure-I; (b) whether the area in which the unit is located is specified in Annexure-II & III of the notification; and (c) if the unit is existing prior to 7-1-2003 and claims to have expanded its installed capacity by not less than 25% whether the expansion were undertaken on or after 7-1-2003 or whether the claim regarding expansion of capacity is correct or not. Therefore, unless the officers have advance intimation about the assessee's in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
