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TMI Blog2018 (5) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... 2005 is not sustainable - in this case the period involved is prior to 16.06.2005, therefore, the demand of Service Tax on account of Business Auxiliary Service is set aside - demand set aside. Whether the appellant is entitle to benefit of exemption N/N. 50/2003-CE or not? - Difference of opinion - majority order - Held that: - the appellant has got an acknowledgment of having a letter addressed to Assistant Commissioner intimating availment of the said Notification No. 50/2003 and a copy of which having acknowledged by Sector Officer and that the Sector Officer is part and parcel of establishment of Assistant Commissioner, therefore, as held in various pronouncements that a communication submitted to any authority under establishment was to be treated as submitted to the head of the office. The letter acknowledged by Sector Officer is an intimation submitted to the Assistant Commissioner. If that is not held so than in further each and every acknowledgment is to be given by Assistant Commissioner himself and the same will not be practical and possible - Therefore, the appellant had filed intimation that they would be availing benefit of notification no. 50/2003 with the As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her submission that in their declaration, the appellant has given necessary information but the finding of the Ld. Adjudicating Authority that new products of the appellants have not entitled for exemption is misplaced and in defiances of the provisions of the said notification. The averment not intimated regarding the substantial expansion is incorrect as they have given the details alongwith declaration filed required for substantial expansion and the same are also in confirmation with CBEC circular No. 21.01.2004. He further submitted that there is no requirement under the said notification to give intimation to Districts Industries Centers with regard to the substantial expansion, therefore, the observation made by the Adjudicating Authority is incorrect. 4. He further submitted that without prejudice to the above, assuming for the argument sake, the information regarding substantial expansion was not given by the appellants. The declaration under the Notification No. 50/2003-CE is on the record admitted by the Jurisdictional Central Excise Authority as well as by the Adjudicating Authority. In case some information was required, the Revenue could have raised the objection a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification and he also support the impugned order to demand the Service Tax from the appellants. 7. Heard the parties and considered the submissions. 8. On careful considerations and submission made by both the sides, we find that following issues emerged before us:- 1. Whether the demand can be confirmed under Business Auxiliary Service for the period prior to 16.06.2005 under the category of Business Auxiliary Service for the activity of bullet proofing of vehicle or not? 2. Whether the appellant is entitle to benefit of exemption Notification No. 50/2003-CE or not? 9. With regard to the Issue No. 1. We find that that the clause V of Section 65 (19) of the Finance Act, 1994 was amended on 16.06.2005 wherein the production or processing on behalf of the client has been amended. Earlier, the clause 5 read as under:- Production of goods on behalf of the client. Admittedly, the appellants are not producing the goods on behalf of the client, moreover, the appellants are engaged in the activity on the goods produced by their clients and further processing for the bullet proofing of those vehicles. Admittedly, for the period, prior to 16.06.2005, the wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the remaining part of the financial year; (ii) The manufacturer shall, while exercising the option under condition 1. Inform in writing to the jurisdiction Deputy Commissioner of Central Excise or Assistant Commissioner of Central Excise, as the case may be, 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 manufacture of specified goods; (d) description of the specified goods produced; (e) date on which option under this notification has been exercised; (iii) The manufacturer may, for the current financial year, submit his option in writing on or before the 30th day of November, 2003.] 2[2. The exemption contained in this notification shall apply only to the following kinds of units, namely:- (i) new industrial units which have commenced commercial production on or after the 7th day of January, 2003, but not later than the 31st day of March, 2007; (ii) industrial units existing before the 7th day of January, 2003, but which have undertaken substantial expansion b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the benefit of doubts goes in the favour of the appellants that the appellants have filed required declaration on 06.10.2003 which was found on record. 15. We further find that the Adjudicating Authority has relied on the report given by the District Industries Center that no such declaration has been filed by them for substantial expansion. To file declaration with District Industries Centre is not the requirement as per the notification in question, therefore, the reliance placed by the Ld. Adjudicating Authority has been misplaced, as it is evidence from the record that the appellants have filed declaration dt. 16.10.2003 (may be deficient). If the deficient declaration is filed, the Revenue was required to ask to remove the discrepancy in the said declaration, if so desired, and the same has not been done by the Revenue. In that circumstances, the benefit of exemption Notification No. 50/2003 cannot be denied to the appellants. 16. Therefore, the impugned order qua denying the benefit of exemption Notification is set aside. 17. In result, the impugned order is set aside and the appeals filed by the appellants are allowed with consequential relief if any. Ashok Jind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it. Secondly, though the letter is typed and apparently addressed to the Assistant Commissioner, Shimla, (address is also not given in full) there is something also written by hand as C.C. copy to the Sector Officer, Central Excise, Una. There is no record either of this letter being received in the office of the Assistant Commissioner, Shimla. Even the range file does not have this paper). Anyway this letter is no substitute for the declaration required under Notification No.50/2003-CE which asks for a number of details which are absent in this letter. There is, of course, a mention at the end of the letter. We are enclosing the necessary data as required under the availment of exemption notification for your reference and record. But the words in the text of the letter do not otherwise specifically indicate that there are enclosures to the letter which is normally the case with letters enclosing certain papers. Such letters would invariably indicate in the text of the letter that there are enclosures as under or words to that effect. 71. The so called enclosure to the letter has also now been supplied by the party. It is difficult to accept its authenticity either. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under: - The Assessing Authority, Dated 25.09.03 Excise Taxation Department, Una, Distt, Una (H.P). Subject: Inclusion of manufacturing and sale of school furniture dual in our registration certificate bearing No. HP-GST-3302. Esteemed Sir, It is to inform that our unit is registered with Excise and Taxation, Amb, Distt. Una under Registration No. HP-GST- 3301, CST-3302 for re-sale and Fabrication of Iron and Stell, Bulletproof Structure on Vehicles, security products and body builders on the vehicles. The Management has decided to manufacture the school dual desks consisting of laminated board which shall be fixed on steal frame. So it is requested to include the laminated board, steel pipes, nut-bolts, wooden side margin, paint, thinner and warmish as a major raw material for manufacturing of these dual desks. It is further requested to include the sale of dual desks in our registration certificate also enabling us to sale the same products w.e.f. 01.04.03 Photocopies of the registration certificate is enclosed herewith for your reference. The original registration certificate for amendment are enclosed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and photo copy of registration register page of M/s. Security Engineering Products Gagret is enclosed herewith. 3. Date of production has been given in para No.1 4. The unit had not applied for substantial expansion. 24. This Tribunal itself in numerous cases has relied upon the report/comments of the District industry Centre/ Director of Industries while deciding the question of eligibility of benefit of area based exemption notification. One such case was in the appeal relating to the Jai Ambey Containers (Final Order No.60678-60679/17 dt.27.04.2017 in appeal No.E/2380/2007 E/1075/2008) where Tribunal after going through the report of the Director of Industries on assessment of revised capacity, observed as under in para 23 of the order: 23. As Director of industries has examined the factory premises of the appellant and after following due procedure observed that the installed capacity of the appellant has been increased from 1175 MT to 1825 MT which is increase in 55% in the installed capacity, therefore, we hold that the appellant is entitled for benefit of exemption Notification 50/2003-CE dated 10.06.2003. In these terms, the impugned order qua denying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be placed before the Hon ble President to appoint third Member to resolve the following issue; (a) Whether in the facts and circumstance of the case and evidences placed on record, the appellant is entitled for the benefit of exemption Notification No. 50/2003-CE dated 10.06.2003, as held by Member (Judicial); OR Whether, in the facts and circumstances of the case and the evidences placed on record, the Member (Technical) is correct in holding that appellant is not entitled to avail the benefit of Notification No. 50/2003-CE dated 10.06.2003, and if so, whether penalty has been correctly imposed on the appellant and Shri Sandeep Sobti M.D. on account of suppression. (Points of difference pronounced in the court on 14/12/2017) Devender Singh Member (Technical) Ashok Jindal Member (Judicial) Per : Mr. Anil G. Shakkarwar 28. Heard on the difference of opinion. 29. The ld. Counsel for the appellant submits that the appellant through their letter addressed to Assistant Commissioner of Jurisdiction informed that they would be availing benefit Notification No. 50/2003 as amended by Notification No. 76/2003 for their unit at Bharbhain Road ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted to the Assistant Commissioner. If that is not held so than in further each and every acknowledgment is to be given by Assistant Commissioner himself and the same will not be practical and possible. Therefore, I am of the opinion that the appellant had filed intimation that they would be availing benefit of notification no. 50/2003 with the Assistant Commissioner. The revenue did not act for five years on the same to get any short-coming about information given by them to be made good and it was for revenue to write to the appellant and seek such information. It is unfair on the part of Revenue to say that a letter dated 15.07.2009, signed by a sector officer and copy of which is available on record is cancelled. Therefore, I do not agree with the views expressed by the brother Member (Technical). I agree with the views expressed by the brother Member (Judicial). 32. With this opinion, the file is returned to Division Bench. (Dictated and pronounced in the open court) (Anil G. Shakkarwar) Member (Technical) MAJORITY ORDER In view of the majority decision the appeals are allowed (Final Order pronounced in the court on 26.03.2018) Devender Si ..... X X X X Extracts X X X X X X X X Extracts X X X X
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