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TMI Blog2018 (8) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... self credit taken by the appellants cannot be denied. Appeal allowed - decided in favor of appellant. - Appeal Nos. E/60723, 60724, 60725/2017-EX[DB] - FINAL ORDER NO. 62547-62549/2018 - Dated:- 5-7-2018 - Hon ble Mr. Ashok Jindal, Member ( Judicial ) And Hon ble Mr. Devender Singh, Member ( Technical ) For the Appellant : Ms. Asmita Naik, Advocate For the Respondent : Sh. A.K. Saini, A.R. ORDER Per : Devender Singh The appellants are in appeal against the impugned order. As the issue involved is common in all the three appeals, a common order is being passed. 2. Brief facts of the case are that the appellants are registered with the Central Excise and are engaged in the manufacture of Surfactants falling under Chapter Heading No. 34 of the First Schedule to the Central Excise Tariff Act, 1985. The appellants are availing the benefit of exemption Notification No. 56/2002-CE dt. 14.11.2002 under which specified goods produced by a manufacturer are eligible for exemption subject to the conditions and procedures contained therein. The appellants started commercial production w.e.f. 16.10.2004. The appellants had availed the cash refund facility as provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (SC) (ix) FEM Care Pharma Ltd. vs. CCE, Chandigarh 2015 (330) ELT 505 (Tri. Del.) 4. Ld. A.R. reiterated the findings in the order of the Commissioner (Appeals). 5. Heard the parties and perused the record. 6. We find that the sole ground to deny self credit to the appellants by the Commissioner (Appeals) is that condition of para 2C(d) of the Notification 56/2002-CE is required to be complied strictly. Therefore the appellants are not entitled to take the self credit. For better application, conditions 2C(d), (e) and (f) in Notification 56/2002-CE are extracted below: 2C(d) the manufacturer shall submit a statement of the total duty payable as well as the duty paid by utilization of CENVAT credit or otherwise and the credit taken as per clause (a), on each category of goods manufactured and cleared under the notification and specified in the said Table, to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, as the case may be, by the 15th of the month in which the credit has been so taken; (e) the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, after such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason for denial of the exemption to the appellant is that they have not filed the declaration as stipulated in the notification for availing such exemption. The original authority held that though Notification No. 50/2003-C.E. did not contain such condition initially the same was inserted vide Notification No. 76/2003-C.E., dated 5-11-2003. The original authority held that the condition of filing declaration with details is mandatory and in the absence of that the exemption shall not be available. 6. We have perused the condition as reproduced above. The details as required to be filed in the option were all available in the letter dated 15-3-2010 seen in the appeal records. The said letter was in connection with registration of the Unit No. III under Rule 9 of Central Excise Rules, 2002. The registration as sought for has been given by the department on 19-3-2010. However, we note that the appellant indicated in the said Notification No. 76/2008-C.E., dated 24-3-2008 with reference to already existing unit (Unit-II) apparently no reference to area based Exemption No. 50/2003 was made when new registration was sought for Unit No. III. However, the monthly ER-I return which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2003-CE dt. 01.03.2003, wherein the assessee was required to file their declaration, similar in nature to the Notification No. 50/2003-CE before first clearances. In the majority judgment, after there was a difference of opinion between two members of the Division Bench, it was held as under: 23. It may not be out of place here to observe that for claiming the benefit of any notification which is subject to fulfilment of conditions enumerated therein, such conditions are required to be fulfilled by the assessee. However, there can be different kinds of conditions, specified under particular enactment. Whereas some conditions are substantial conditions, upon which extending of that benefit is available, there can be procedural requirement. Hon ble Supreme Court in the case of Sambhaji vs. Gangabai-2009 (240) ELT 161 (SC) discussed the issue of substantial condition vis-a-vis procedural conditions at length. It stands observed by Hon ble Supreme Court that procedural law should not be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. All the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as taken a similar view on delayed filing of declaration in the case of FEM Care Pharma Ltd. (supra). 9. We also note that in the case of Saraswati Agro Chemicals India Ltd. vs. CCE, Jammu Kashmir - Final Order No. 60140- 60150/2018 dt. 27.02.2018 in Appeals No. E/60516-60526/2017, this Tribunal has examined the question of late submission of statement in terms of condition 5(d) of Notification No. 01/2010-CE dt. 06.02.2010 and took the following view: 13. As the said issue has been examined by several authorities including the Apex Court wherein it has been held that condition 5(d) of Notification No.01/2010-CE dated 6.2.2010 is similar to other notifications which are in the manner of procedure to be followed by the appellant wherein the appellant is required to file certain documents before a particular date. If such documents are filed with a delay, in that circumstance, it is only a procedural lapse on the part of the appellant, the benefit of notification cannot be to the appellant. 14. In view of above observations, we hold that condition 5 (d) of Notification No.01/2010-CE dated 6.2.2010 is procedural in nature and for complying with the said condition with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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