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TMI Blog2010 (11) TMI 900X X X X Extracts X X X X X X X X Extracts X X X X ..... l filed by the Department were disposed off by the Tribunal vide final order No. A-428- 431/KOL/08, dated 26-3-2008 remanding the matter involved in these three appeals to the Chief Commissioner and rejecting the appeal by the Department. The Department filed appeals against these orders and the Hon'ble High Court vide judgment dated 2-6-2010 in Central Excise Appeal No. 2 of 2008 set aside the order of the Tribunal in so far as the same related to these three appeals by the parties and remanded to the Tribunal for fresh consideration with the following observations/directions : 12. "Noticeably the parties are one that the Committee, belatedly though had held its meetings as contemplated under the notification dated 25-8-2003 in course of which it had examined the respondents' claim for exemption thereunder and had recorded its decisions in connection therewith. It is on the basis of the said decisions which demonstrate that a portion of such claim(s) had been rejected by the Committee on reasons recorded by it that the Commissioner of Central Excise, Shillong, had initiated independent proceedings under Section 11A of the Act and had arrived at conclusions aggrieved by which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppropriate and necessary by the learned Tribunal. 14. Though in course of the arguments before us, the learned Sr. Counsel for the assessees had assertively pleaded that secured payments made by them (assessees) towards plants and machineries in their units ought to be accepted as final investments thereof, delay in the installation thereof notwithstanding, as their claim for exemption for excise duty as a whole is being remanded to the learned Tribunal, it would examine and record its decision on this aspect of the matter as well needless to say, by applying the aforementioned criteria as outlined by this Court. Considering the relevant period(s) for which the assessees' claim for exemption under the notification, is pending finalization, we consider it appropriate to fix a time frame for the learned Tribunal with a request to it to adhere thereto in disposing of their appeals on merits. On an estimate of all aspects of the matter, we ordain a period of 60 days therefrom for completion and hearing of the appeal and disposal thereof by the learned Tribunal. The substantial questions of law framed by this Court therefore stand answered accordingly." 2. In pursuance to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2006 passed the impugned order confirming the demand of ₹ 7,70,79,283.00 under Section 11A of the Central Excise Act, 1944 along with interest under Section 11AB of the Act ibid. 2.2 Similar are the facts in the excise appeal No. 265/06 which involve duty demand of ₹ 6,38,39,345.00 along with interest and in excise appeal No. 362/06 which involve duty demand of ₹ 1,43,44,195.00 along with interest. 3. Ld. Advocate for the appellant contested the demand on various grounds and made the following important submissions :- (a) The Commissioner as adjudicating authority has not applied his mind independently to the submissions made by the appellant that they have fulfilled the conditions of the notification. The Commissioner has merely followed the decision of the Committee in which his senior officer, the Chief Commissioner was one of the members. (b) The Committee which gave the certificates to the effect that partly investments have been made and that rest of the investments have not been made is not a judicial committee. The Committee was not properly constituted. They have not conducted the proceedings within the time limit prescribed in the notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decisions of Hon'ble Supreme Court in the case of Union of India v. Wood Papers Ltd. reported in 1990 (47) E.L.T. 500 (S.C.) (para 2), the decision of the Hon'ble Supreme Court in the case of Commr. of Customs (Imports), Mumbai v. Tullow India Operations Ltd. reported in 2005 (189) E.L.T. 401 (S.C.) (para 36), the decision in the case of Commr. of Central Excise, Shillong v. North Eastern Tobacco Co. Ltd. - 2002 (146) E.L.T. 490 (S.C.), the decision in the case of Amrit Papers v. Commr. of Central Excise, Chandigarh, [2006 (201) E.L.T. 321 (S.C.)] (para 10) and decision in the case of ONGC Ltd. v. Commr. of Customs, Mumbai - 2006 (201) E.L.T. 321 (S.C.), Ld. Advocate submits that the eligibility of the notification, no doubt is to be construed strictly but once the notification is held to be eligible, a liberal interpretion is to be given and violation of procedural conditions cannot be a bar to extending the benefit of the exemption. He also particularly draws our attention in the case of Amrit Papers, wherein the delay in producing the certificate for the purpose of availing the benefit of exemption has been condoned. (f) Relying on the decisions in the case of Parsonal Babu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chinery are purchased and delivered to the assessee availing the benefit of the said notification, it would be treated as investment having been made. The number of times the words "investment made" are used are not relevant. In the context of 69 of 2003, it is not substantiated by the appellants that they have purchased and taken delivery of the machinery within the stipulated period of six months. (e) The committee constituted under the notification has been given the role to consider and give a certificate relating to investment made and therefore they are bound to decide issues connected to the same. Further, when there is specific time limit prescribed for making investment by the assessee and for reporting the same to the investment committee, the assessee is bound to strictly adhere to the said time limits. (f) The appeal before the Tribunal is basically against the order of the Commissioner as an adjudicating authority. The Tribunal may not be required to look into the jurisdiction and manner of working of the committee. (g) In respect of appeal No. 265/2006, show cause notice has been issued on 7-10-2004 and it was claimed by the appellant that the demand is hit by time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied thereon under the Second Schedule to the said Central Excise Tariff Act, (hereinafter referred to as the special excise duty), as is in excess of the amount calculated at the rate specified in the corresponding entry in column (5) of the said Table, (c) from so much of the duty of excise specified thereon under the First Schedule to the said Additional Duties of Excise Act, (hereinafter referred to as the additional excise duty), as is in excess of the amount calculated at the rate specified in the corresponding entry in column (6) of the said Table, subject to the following conditions, namely :- (A) the exemption under this notification shall be available only in respect of a unit which ,- (i) is located in the State of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland or Tripura; (ii) had commenced commercial production on or after the 24th day of December, 1997, but not later than the 28th day of February, 2001. (iii) had availed of the benefit under the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 32/99-Central Excise, dated the 8th July, 1997 [G.S.R. 508 (E), dated the 8th July, 1997] or No. 33/99-Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so reinvested, shall be paid by the manufacturer on the date on which the investment is withdrawn. TABLE S. No. Sub-heading No. Description Basic excise duty Special excise duty Additional Excise duty (1) (2) (3) (4) (5) (6) 1. 2401.90 All goods 8% 8% 5% 2. 2402.00 All goods 8% Nil Nil 3. 2404.41 All goods 8% 6% 6% 4. 2404.49 All goods 8% 6% 6% 5. 2404.50 All goods 8% 6% 6% 6. 2404.99 All goods 8% 6% 6% [Notification No. 69/2003-C.E., dated 25-8-2003] 5.1 It is seen that the exemption is subject to conditions (A) (B) (C) (D) (E) & (F). An amount equal to the difference between the sum of duties payable but for the exemption in this notification shall be utilized by the manufacturer only for investment in plant and machinery. The conditions are required to be fulfilled after removal of the goods. The investment should be made before the expiry of 6 months. The notification envisages constitution of a Committee and specific role for the committee in relation to overseeing the fulfilment of the conditions relating to investment. The manufacturer availing the exemption is required to furnish all details relating to the investment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said judgment cannot be applied to the facts of the present case. The ratio of the decision in the case of Eagle Flask Ltd. (cited supra) and that in the case of Ginni Filaments Ltd. are squarely applicable to the facts of this case. 5.4 However, the condition that the manufacturer should report to the Committee, the details of investment within one month after expiry of 6 months can be treated as part of procedural conditions, provided that the investment has been made within 6 months. 5.5 As the appellants are claiming the benefit of notification, the burden to prove that they have fulfilled all the conditions of notification is clearly on them. They have not produced the evidence that they have taken delivery of the plant and machinery within the specified period. Mere placing orders or issue of cheque, or "securing payments" cannot amount to investment made. The Board's guidelines relied upon on behalf of the appellants specify the fact of taking need for delivery as the criteria to conclude that investment has been made. This appears to be reasonable interpretation. Therefore, we do not find any infirmity in the order of the Commissioner. Even, in the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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