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TMI Blog2016 (4) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... refund amount under Notification No. 33/99-CE. Revenue cannot be expected to grant suo-moto refund under Notification No. 33/99-CE when no such claim is made by 7th of the next month either in the specific statement under the exemption notification or RT-12 return filed. Specific time limits have been prescribed under Notification No. 33/99-CE for filing a refund statements under clause 2 (a) . This statement could be a specific statement under Notification No. 33/99-CE or a RT-12 Return but such statement should have a claim for refund of duty paid through PLA. The provisions of Section 11B of the Central Excise Act, 1944 are not applicable to the refunds arising out of exemption Notification No. 33/99-CE because specific monthly time limits have been prescribed under this notification. Accordingly, on cumulative reading of various provisions of Notification No. 33/99-CE, we are of the considered opinion that refund claims, filed after more than 5 to 6 years of such duty payment, are clearly time barred. - Decided against assessee X X X X Extracts X X X X X X X X Extracts X X X X ..... r this clarification appellant came to know that benefit of Notification No.33/99-CE is admissible and filed the same on 18.5.2004 within a reasonable period from the date of knowledge. That there is no time limit specified in the area based Exemption Notification No.33/99-CE for filing the refund claim if the same is admissible to appellant and is filed within the period of longevity of the Notification (i.e. upto 08.7.2009). That Apex Court in the case of CCE, Surat-I vs. Favourite Industries [2012 (278) ELT 145(SC)] has held that liberal construction has to be given to a beneficial Notification. 3.2 Appellant also filed copies of RT-12/ER-1 for the period July 1999 to March, 2003 and claimed that once all the relevant details are available in these returns then there is no need to file a separate monthly statement under Notification No.33/99-CE for claiming refund claims as held by this Bench in the case of CCE, Shillong vs. Vinay Cement Ltd. (supra). 4. Shri D.K.Acharya (Spl.Counsel) appearing on behalf of the Revenue in Appeal No.EA-126/2008 argued that there was no confusion in clause 3(b) of Notification No.33/99-CE dated 08.07.1999 during the relevant period of claim. Tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied upon the Apex Courts decision in the case of State of Punjab Vs. Bhatinda District Co. Op. Milk P. Union Ltd. [2007 (217) ELT 325 (S.C.)] to argue that reasonability of a time limit has to be discovered from the related statutes and the rights & liability thereunder. 6. Shri Ravi Raghavan (Advocate) and Ms. Satabdi Chatterjee (Advocate) appearing on behalf of the Respondent M/s. Tyroon Tea Estate, during hearing as well as through written submissions made various submission as follows. (i) That the Respondent undertook substantial expansion of more than 25% during the financial year 1998-1999 & 1999-2000 and the same was certified by a Chartered Engineer by a certificate dated 22/10/2006. (ii) That after undertaking expansion refund application dated-1/11/2006 was moved claiming exemption under Notification No. 33/99-CE for the period 8/7/99 to March, 2003. (iii) That SCN dated 11/12/2007 issued to his client did not dispute substantial expansion. (iv) That the issue of substantial expansion not being carried out was not agitated in the show cause notice and department cannot raise the issue of substantial expansion not taken place due to lack of proper verification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1992 196 ITR 188, 193, 194 (SC)] (b) CIT Vs. UP Agro Industrial Corporation [1991 (188) ITR 370, 375(All)] (c) CCE, Shillong Vs. Nirmala Tea Estate [2002 (150) ELT 639 (Tri.-Kol)] (d) CCE, Shillong Vs. Shivdham Industries Pvt. Ltd. [2002 (141) ELT 272 (Tri.-Kol)]. (v) That the RT-12 returns filed by his clients can be considered as due statements under Notification No. 33/99-CE in view of the following case laws: (vi) That in view of Apex Court's case law CCE & Customs, Surat Vs. Sun Pharmaceuticals Industries Ltd. [2015 (326) ELT (SC)] authorities cannot go beyond the scope of the show cause notice. 8. Heard both sides to each appeal and perused the case records. The issue involved in the present proceedings is whether refund claims filed by the Respondents/assesses, after a period of more than 5 years from the date of payment of duty, are admissible or not. It is the case of the Revenue that no refund claim has been filed by the assesses under Notification No. 33/99-CE which should be filed in the form of a statement upto the 7th of the next month under clause 2 (a) of the notification. On the other hand, it is the case of the assesses that clause 2 (a) does not prescr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, shall refund the amount on provisional basis by the 15th of the next month to the month under consideration and thereafter may adjust the amount of refund by such amount as may be necessary in the subsequent refunds admissible to the manufacturer. 3. The exemption contained in this notification shall apply only to the following kind of units, namely:- (a) New industrial units which have commenced their commercial production on or after the 24th day of December, 1997; (b) Industrial units existing before the 24th day of December, 1997 but which have undertaken substantial expansion by way of increase in installed capacity by not less than twenty five per cent on or after the 24th day of December, 1997." 8.2 It has been observed by the first appellate authority in para 5 of the Order-in-Appeal No. 72/CE (A)/GHY/07 dated 9/10/2007 that CBEC Vide letter No. 354/8/98-TRU (Part-II) Dated- 6/10/1999 has clarified that provisions of Section 11B of the Central Excise Act, 1944 are not applicable to refunds under Notification No. 33/99-CE dated-8.7.1999. Therefore, both the special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact in the case of Dhunseri Tea Estate Vs. CCE, Dibrugarh (supra). In view of the above observations RT-12 returns of the Respondents/assesses cannot be considered as appropriate statements under clause 2 (a) of the Notification No.33/99-CE. It is not the case of the Respondents/assesses that their substantial expansion application was pending with the department and their refund claims filed were delayed due to non approval of expansions by the Revenue, which could have been a reasonable cause for delay in filing refund claims/statements. There is no confusion in the provisions contained in clause 3 (b) of the exemption notification that substantial expansion of 25% should be by installing brand new machinery only. There was thus no justifiable reason to file substantial expansion applications after 5-6 years of the actual expansion done and seek retrospective refund claims. In view of the above, it is held that specific time limits have been prescribed under Notification No. 33/99-CE for filing a refund statements under clause 2 (a) . This statement could be a specific statement under Notification No. 33/99-CE or a RT-12 Return but such statement should have a claim for refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iews is quite clearly that the general rule is strict interpretation while special rule in the case of beneficial and promotional exemption is liberal interpretation. The two go very well with each other because they relate to two different sets of circumstances." 9.1 The opening few lines of para 16 of the case law CC (P) , Mumbai Vs. M/S. Ambalal & Co., reproduced above, lays down that if any condition of a notification is not fulfilled the party is not entitled to the benefit of that notification. In the present case the statement under clause 2 (a) of the exemption notification No.33/99-CUS is a mandatory condition that an assesse should claim the refund of duty by 7th of the next month . This condition cannot be interpreted liberally as laid down by the Apex Court. However, accepting RT-12 return in place of specific statement could be a liberal interpretation provided such RT-12 return also specifies refund amount under Notification No. 33/99-CE. Revenue cannot be expected to grant suo-moto refund under Notification No. 33/99-CE when no such claim is made by 7th of the next month either in the specific statement under the exemption notification or RT-12 return filed. The cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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