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TMI Blog2016 (7) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... a mere procedural one and to avail the benefit of the Notification need not be fulfilled. - non-fulfillment of the said mandatory condition would dis-entitle the Appellant in availing the benefit of the SSI exemption notification no. 09/2003-CE dt.01.03.20003. However, we find that the Appellants had recorded all facts in their statutory records and the demand has been issued for the normal period. Thus, in our view, imposition of penalty of ₹ 1.00 lakh in the circumstances of the case, appears to be too harsh. - Decided partly in favor of assessee. - E/1126/2008-DB - A/10575/2016 - Dated:- 30-5-2016 - Dr. D.M. Misra, Member (Judicial) and Mr. P.M. Saleem, Member (Technical) For Appellant: Shri Anand Nainawati, Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procedural conditions, prescribed at Clause 2 of the said notification viz. exercise of option at the commencement of the financial year to avail the said benefit. It is his contention that the said condition is procedural one and non-fulfillment of the same would not dis-entitle to the benefit of the notification. In support, he referred to the judgment of th Tribunal in the case of M/s Technocrats Engineering Co Vs CCE Mumbai-II - 2001 (137) ELT 459 (Tri-Mumbai), M/s Bombay Processors Vs CCE Mumbai - 2005 (184) ELT 371 (Tri-Mumbai), CCE Vs J.S. Gupta Sons - 2015 (318) ELT 63 (All.). 4. Per contra, the learned Authorised Representative for the Revenue submits that the condition prescribed in Clause 2 of Notification No.9/2003-CE, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the Central Excise Act) and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 9/2002-Central Excise, dated the 1st March, 2002, published in the Gazette of India vide number G.S.R. 130 (E), dated the 1st March, 2002, the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts clearances, specified in column (2) of the Table below (hereinafter referred to as the said Table), for home consumption of excisable goods of the description specified in the Annexure appended to this notification (hereinafter referred to as the specified goods), from so much of each of the duties of excise specified thereon in the First Schedule to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under this notification shall exercise his option in writing for availing the exemption under this notification before effecting the first clearances 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; (ii) while exercising the option under condition (i), the manufacturer shall inform in writing to the jurisdictional Assistant Commissioner of Central Excise or the jurisdictional Deputy Commissioner of Central Excise with a copy to the Superintendent of Central Excise giving the following particulars, namely :- (a) name and address of the manufacturer; (b) location/locations of factory/factories; (c) description of inputs used in m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of normal duty. (iv) where a manufacturer clears the specified goods from one or more factories, the exemption in his case shall apply to the aggregate value of clearances mentioned against each of the serial numbers in the said Table, and not separately for each factory; (v) where the specified goods are cleared by one or more manufacturers from a factory, the exemption shall apply to the aggregate value of clearances mentioned against each of the serial numbers in the said Table and not separately for each manufacturer; (vi) the aggregate value of clearances of all excisable goods for home consumption by a manufacturer from one or more factories, or from a factory by one or more manufacturers, does not exceed rupees three hundre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch on the part of the Tribunal. It is stated at the cost of repetition that the assessee was required to fulfill the condition in stricto senso viz to pay the duty either in cash or through account current if it wanted to avail the benefit of exemption notification and not through adjustment of Cenvat Credit which is not the mode prescribed in the aforesaid conditions. Once we find that the conditions have not been fulfilled the obvious consequence would be that the assessee was not entitled to the benefit of this notification. 7. Therefore, in view of the principle of law laid down in the aforesaid case and in Hari Chand Shri Gopal s case (supra) by the Hon'ble Supreme Court, in our opinion, non-fulfillment of the said mandatory ..... X X X X Extracts X X X X X X X X Extracts X X X X
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