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TMI Blog2013 (7) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... of such fertilisers, respondents were procuring sulphuric acid from M/s. Hindalco Industries Ltd., Bharuch following the procedure as laid down in Central Excise (Removal of goods at concessional rate of duty for manufacturing of excisable goods) Rules, 2001 (hereinafter referred to as Rules). For following the procedures of the said Rules, respondents are required to take permission from the Jurisdictional Assistant Commissioner, which they applied for. During the pendency of such permission granted to the respondent, the respondents in order to continue their production had to prefer to procure quantity of sulphuric acid from M/s. Hindalco Industries Ltd. on payment of duty. M/s. Hindalco Industries Ltd. has been consigning of sulphuric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or him to show whether he is eligible for it or not. For these arguments he would rely upon the grounds of appeal as indicated in the appeal memoranda which are reproduced herein under: 2.1. The Commissioner (Appeals) has erred in holding that "the law is settled now that substantive benefit cannot be denied for procedural lapses. Procedure has been prescribed to facilitate verification of substantive requirement. As per Notification No.4/2006 dated A1.03.2006, the appellant are entitled to procure Sulphuric Acid for use in the manufacture of Fertilizers without payment of duty by following the procedure laid down in Central Excise (Removal of Goods at concessional rate of duty for manufacture of excisable Goods) Rules, 2006. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn, if there ,s a failure to comply with some requirements which are directory in nature, the non-compliance of which would not affect the essence or substance of the notification granting exemption." 4. Ld. counsel appearing on behalf of the respondent would draw my attention to the facts of the case and also bring to my notice that Jurisdictional Assistant Commissioner has granted them permission to procure sulphuric acid at concessional rate of duty to M/s. Hindalco Industries Ltd. It is his submission that there is no dispute as to receipt of sulphuric acid on which duty liability has been discharged by M/s. Hindalco Industries Ltd. in their factory premises as can be seen from the letters written by the superintendent in-charge of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India, there cannot be any question of passing on passing the incidence of duty, as whenever government fixes a price under an Act, it considers all the angles before issuing an order. I find that there is no dispute in the discharge of duty liability on the sulphuric acid procured by the respondent from M/s. Hindalco Industries Ltd., receipt thereof in the factory premises, consumption thereof in the manufacturing fertilisers and clearance of such fertilisers under the Fertilisers Price Control Order of the Government of India. In light of such a factual matrix; the findings recorded by the first appellate authority needs to be reproduced which detailed in nature. 10. The adjudicating authority in the impugned order held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same by the appellant and the use of the said raw material in the manufacture of Fertilizers is not in dispute. There is also no dispute regarding the duty paid on the raw material. Further, the procured Sulphuric Acid has been used in the manufacture of Fertilizer, as per the Annexure-46 submitted bi the appellants and as per the letter dated 14.6.2010 of the Assistant Commissioner Cuttack Division, addressed to the appellants. Thus when the procurement of the raw materials, its duty payment and its use for the intended purpose are not disputed, the appellants are definitely entitled for the refund claim. When the basic criteria has been satisfied, the procedural deficiencies cannot be the only ground for rejecting refund claims, and ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on from the Asst. Commissioner was received late. Since the permission was not received in time they cleared the goods on payment of duty. Had the permission been obtained in time, they would have cleared the goods without payment of duty. Since the goods are otherwise entitled for clearance without payment of duty, they are entitled for the refund. As the receipt and utilization of the goods in the manufacture of Fertilizers is not in dispute, I hold that the appellants are entitled for the refund of Central Excise duty, which is not required to be paid. In view of the above discussions, I pass the following order: 11. The impugned order is set aside and the appeal is allowed. 7. It can be seen that the first appellate auth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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