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TMI Blog2017 (6) TMI 857X X X X Extracts X X X X X X X X Extracts X X X X ..... ill not lie within the jurisdiction of this court, cannot be accepted. The respondent assessee has claimed refund of excise duty by accepting the conditions prescribed in the N/N. 3/2001 dated 01.03.2001. Without challenging the said notification, the respondent assessee cannot have any right to claim the refund under Section 11B of the Act. Whether the time limit of six months under the notification is only a procedural condition or is it mandatory? - Held that: - All the conditions in the notification have been complied with, by the respondent assessee, except Clause 40(b). Therefore, non compliance of the same, is only a procedural lapse and it can be relaxed - reliance was placed in the case of Commissioner of Central Excise vs. Exide Industries Ltd. [2008 (11) TMI 268 - HIGH COURT AT CALCUTTA], where it was held that when the substantive conditions have been fulfilled, the procedural conditions can be relaxed - the refund claims filed by the respondent assessee, are within the time limit specified under Section 11B of the CEA, 1944. The notification under dispute provides partial exemption of excise duty, on fulfilment of conditions. Condition No.40(b) of the notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the notification issued under the powers vested. Appeal allowed - decided in favor of appellant-Revenue. - Civil Miscellaneous Appeal No. 3282 of 2010 - - - Dated:- 18-4-2017 - S. Manikumar And D. Krishnakumar, JJ. For the Appellant : Mr. A. P. Srinivas, SSC For the Respondent : Mr. Raghavan Ramabadran for Mr. Lakshmikumaran JUDGMENT ( Judgment of the Court was made by D. Krishnakumar, J ) The Revenue has filed this Appeal against the final order in No.408/2010 dated 07.04.2010 of Customs, Excise and Service Tax Appellate Tribunal, Chennai. 2. The facts of the case as narrated in the appeal, are as follows :- The respondent Ford India Pvt. Ltd., is engaged in the manufacture of motor cars falling under Chapter 87 of the I schedule to the Central Excise Tariff Act, 1985. During the period under dispute, the respondent assessee cleared the motor cars on payment of the normal rate of duty of 32% ad valorem. Some of those motor cars were registered by the Transport authorities as taxis. As per the notification No.3/2001 dated 01.03.2001, issued under Section 5A(1) of the Central Excise Act, the respondent assessee is eligible for exemption of specia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s conferred by sub-section (1) of Section 5A of the Central Excise Act, 1944 (1 of 1944), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts excisable goods of the description specified in column (3) of the Table below or specified in column (3) of the said Table read with the concerned list appended hereto, as the case may be, and falling within the Chapter, heading No. or sub-heading No. of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) (hereinafter referred to as the Central Excise Tariff Act). Specified in the corresponding entry in column (2) of the said Table, - (a) from so much of the duty of excise specified thereon under the First Schedule to the Central Excise Tariff Act, as is in excess of the amount calculated at the rate specified in the corresponding entry in column (4) of the said Table; and (b) from so much of the Special duty of excise leviable thereon under the Second Schedule to the Central Excise Tariff Act, as is in excess of the amount calculated at the rate specified in the corresponding entry in column (5) of the said Table, subject to the relevant conditions specifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he manufacturer has collected an amount, as representing the duties of excise, in excess of the duties payable under this exemption from the buyer, on receipt of a communication from the said Deputy Commissioner or Assistant Commissioner, as the case may be, that the claim is otherwise eligible for sanction, the manufacturer shall return the excess amount so collected and submit evidence to the said Deputy Commissioner or Assistant Commissioner to the effect that the said amount has been duly returned to the buyer; 5. The respondent assessee filed Claim Petitions before the Assistant Commissioner of Central Excise, Chengalpattu Division, in terms of Notification No.3/2001 dated 01.03.2001, for refund of the excess duty paid on cars, cleared and subsequently registered as taxis. In response to the refund of claim petitions, the appellant department issued show cause notice in C. Nos. V/87/18/222/01-RF dated 14.03.2002 stating as to why the refund claims mentioned in the notice, should not be rejected on the ground that the claims of refund of duty, paid in excess of that specified under Rule 1735 of Central Excise Rules 1944, have been filed to the Assistant Commissioner of Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be denied on the ground of delayed submission, while all other requirements of the notification have been fully met with. Further, under Section 11B of the Central Excise Act, 1944, they can make an application for refund of duty, before expiry of one year from the relevant date and that the claims have been filed much within the time limit provided under Section 11B. Hence, the assessee has requested to condone the delay in filing the claims and ignore it as a procedural lapse and to consider the same. The assessee has also requested to provide an opportunity of personal hearing before the matter is decided. Upon hearing the assessee, the Assistant Commissioner of Central Excise, rejected the refund claims, on the ground that the claims are time barred as per the condition No.40(b) stipulated in Notification No.3/2001-CE, as amended, dated 01.03.2001. 7. While the appeal filed by the respondent assessee in No.36/2003 (M-III) before the Commissioner of Central Excise (Appeals), was dismissed on 11.06.2003, on the ground that he is not vested with any powers to relax limitation of time prescribed with respect to filing of refund claims, the Tribunal allowed the appeal filed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .40 (b) of the Notification No.3/2001-CE dated 01.03.2001. The period prescribed to submit the claim for refund of duty paid in excess is, before expiry of six months from the date of payment of duty on the said motor vehicle. It is an admitted fact that the respondent assessee paid 16% excise duty and another 16% as Special excise duty, at the time of clearance of motor vehicle (total duty 32% advalorem duty). Therefore, the respondent assessee had paid the duty as per the Central Excise Tariff Act 1985. The notification No.3/2001 issued by the Central Government in the public interest, exempts excisable goods of the description specified for motor vehicles. The said notification was issued in exercise of the powers conferred by sub-section (1) of Section 5A of the Central Excise Act, 1944. The refund claim was made under the said notification by the respondent assessee to the assessing officer. As per Condition No. 40(a) of the Notification, the manufacturer pays duty of excise at the rate of 16% ad valorem under the First Schedule and 16% ad valorem under the Second Schedule, in the case of motor vehicle falling under sub-heading No.8702.10 and sub-heading No.8703.90, at the tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty had not been passed on by him to any other person : Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) substituted by that Act :] [Provided further that] the limitation of [one year] shall not apply where any duty has been paid under protest. (2) If, on receipt of any such application, the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] is satisfied that the whole or any part of the duty of excise paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund : Provided that the amount of duty of excise as determined by the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] under the for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny notification issued under clause (f) of doubts, it is hereby declared that the first proviso to sub-section (2), including any such notification approved or modified under sub-section (4), may be rescinded by the Central Government at any time by notification in the Official Gazette.] Explanation. For the purposes of this section, - (A) refund includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (B) relevant date means, - (a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods, - (i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or (ii) if the goods are exported by land, the date on which such goods pass the frontier, or (iii) if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India; (b) in the case of goods returned for being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, Chennai II vs. Vadapalani Press, reported in 2015 (320) ELT 238 (Madras), is also relied on by the respondent assessee. 12. Learned counsel for the appellant department has relied upon the decision of the Hon'ble Supreme Court in the case of Raghuvar (India) Ltd., reported in 2000 (118) ELT 311, wherein it is observed that the provisions of the special scheme alone will govern such a situation and there is no scope for reading the stipulations contained in a general provision. The Notification No.3/2001 has been issued by the Central Government, in exercise of the powers conferred under Section 5A(1) of the Central Excise Act, 1944. Section 5A-1, reads as follows : SECTION 5A. Power to grant exemption from duty of excise. (1) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette exempt generally either absolutely or subject to such conditions (to be fulfilled before or after removal) as may be specified in the notification, excisable goods of any specified description from the whole or any part of the duty of excise leviable thereon : Provided that, unless specifically pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... follows :- 5. ... Once it is admitted that credit has been taken, it is not for the High Court to decide whether credit could have been taken or not. The notification has to be read as a whole. If any of the conditions laid down in the notification is not fulfilled, the party is not entitled to the benefit of that notification. In the case of HLG Trading Ors. vs. Union of India Ors., reported in MANU/TN/3485/2015, Division Bench of this Court, in paragraphs 35 and 36, had observed as follows :- 35. In Ashok Traders Vs. Union of India [MANU/MH/0180/1987 : (1987) 32 ELT 262 (Bombay)], a Division Bench of the Bombay High Court was concerned with a claim made by an importer of High Density Polyethylene Moulding Powder for exemption from payment of countervailing duty. The exemption Notification was actually a partial exemption and the Notification stipulated two conditions namely, (a) that the product should have been manufactured from raw naptha or any chemical derived there from and (ii) that on such raw material, the appropriate amount of duty of excise should have already been paid. In other words, the benefit of exemption was available under the Notification on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (270) E.L.T. 49 (Kar.)), in support of his contention that a dispute as to the classification of goods and whether they are not covered by the exemption notification relates directly and proximately to rate of duty applicable for assessment and therefore, the appeal is incompetent before this Court. 14. The question that falls for our consideration in this appeal is as to whether, the assessee is entitled to the benefits of Customs Notifications. The Rate of duty is not in dispute. The entitlement of the assessee to the benefits of the customs notification alone is the issue. Therefore, the appeal is clearly maintainable before this Court. We, therefore, reject the contention raised by the learned senior counsel for the assessee with regard to maintainability. In the case of State of Jharkhand vs. Ambay Cements, reported in 2004 (178) ELT 55 (SC), the Hon'ble Supreme Court has observed as follows, in paragraphs 23, 24, 25, 26, which is in favour of the appellant department :- 23. Mr. Bharukha further submitted that in taxing statutes, provision of concessional rate of tax should be liberally construed and in respect of the above submission, he cited the judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck paddles are needed, which is sold by the Appellant only as an accessory. Not only this, while selling the defibrillators said paddlers are not sold as an integral component/ accessory of the main equipment. To the contrary, their purchase is optional, meaning thereby the choice is that the buyer to purchase paddle or not. During the arguments it was conceded that 99 per cent sale of these defibrillators were without paddles which means that predominantly the goods are sold for external use only. We would also like to reproduce, at this stage the description of the goods in question as given by the Appellant itself in the operating and service manual of the product in question. It reads as follows: DESCRIPTION : BPL's Portable Defibrillator/Monitor is designed to provide external counter shocks and to display hear rate and ECO wave forms on the scope screen. ...Delivery of the monophasic countershock pulse (Lown/Edmark Waveform) is triggered by depressing the discharge buttons on both of the anterior paddles, or if internal paddles are used, by depressing the INT., PADDLE DISCHARGE button located on the control panel Optional anterior paddles are equipped wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure, the non-compliance of which would not affect the essence or substance of the notification granting exemption. 30. In Novopan India Ltd. (Novopan India Ltd. v. CCE and Customs MANU/SC/1216/ 1994 : 1994 Supp (3) SCC 606) this Court held that a person, invoking an exception or exemption provisions, to relieve him of tax liability must establish clearly that he is covered by the said provisions and, in case of doubt or ambiguity, the benefit of it must go to the State. A Constitution Bench of this Court in Hansraj Gordhandas v. CCE and Customs (MANU/SC/0265/1968 : AIR 1970 SC 755 : (1969) 2 SCR 253) held that 21-10-2016 (Page 8 of 9 ) www.manupatra.com Judges Library (Novopan India Ltd. Case, SCC p. 614, para 16): 16...such a notification has to be interpreted in the light of the words employed by it and not on any other basis. This was so held in the context of the principle that in a taxing statute, there is no room for any intendment, that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification i.e. by the plain terms of the exemption. 15. Section 11B would not govern the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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