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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 ..... availed the cash refund facility as provided under para no. 2B of the Notification No. 56/2002-CE dt. 14.11.2002 (as amended) and filed statement for April-June, 2014 for determination of amount of refund to the Assistant/Deputy Commissioner of Central Excise in terms of 2B(a) of the Notification No. 56/2002-CE dt. 14.11.2002, as detailed under: Sr. No. Month Refund Amount claimed [BED] (Rs.) Due date of filing the statement Date of filing the statement Delay in filing the statement 1. April- June 2014 4,47,058/- 7.9.2015 14.9.2015 7 days The adjudicating authority determined and sanctioned the amount as refundable to the respondents by way of cash, vide Order-in-Original No. 380-387/AC/R(S)Jam/16 dt. 15.06.2016 in terms of Notification No. 56/2002-CE dt. 14.11.2002. Being aggrieved with the order of adjudicating authority, the Revenue filed an appeal before Commissioner (Appeals). In appeal, the Order in Original dt. 15.06.2016 was set aside and the appeal of the Revenue was allowed. Aggrieved from the said order of the Ld. Commissioner (Appeals), the appellants have filed this appeal. 3. Ld. Advocate for the appellants submitted that delayed sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been submitted. In case the credit taken by the manufacturer is in excess of the amount determined, the manufacturer shall, within five days from the receipt of the intimation, reverse the said excess credit from the account current maintained by him. In case, the credit taken by the manufacturer is less than the amount of refund determined, the manufacturer shall be eligible to take credit of the balance amount; (f) in case the manufacturer fails to comply with the provisions of clauses (a) to (e), he shall forfeit the option, to take credit of the amount calculated in the manner specified in sub-paragraph 2 in his account current on his own, as provided for in clauses (a) to (c); " 7. We also find that similar issue has recently come before this Tribunal in many cases and the Tribunal has taken the consistent view that condition 2C(d) is procedural in nature and for compliance with the said notification, delay cannot be fatal to the appellants. In one such case, in the case of Eon Electrics Limited (supra), where the appellants had availed the exemption notification 50/2003-CE dt. 10.06.2003, but did not file the required declaration before their first clearance. The Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50/2003 along with details like description of goods, quantity manufactured, etc. In these factual matrix, we find that the department has been intimated about the existence of the unit, nature of products manufactured and the exemption claimed under Notification No. 50/2003-C.E. We find that the same can be considered as adequate compliance of the condition of the notification. We again note that there is no other material ground on which the exemption is sought to be denied. In view of these factual positions, we find no justification in denial of exemption and accordingly set aside the impugned order and allow the appeal." 6.3 We also find that this Tribunal in the case of Veekay Surgicals Pvt Ltd (supra) took a similar view and held as under: "5. After hearing both the sides and on perusal of the record, it appears that when the first time area based exemption was granted to the appellant then certain formalities were supposed to be complied. These formalities include filing the said declaration. Since 2005, the appellant is filing regular return to claim area based exemption as per Notification No. 50/2003. The Department never raised any objection and allowed the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mangalore Chemicals & Fertilizers Ltd.- 1991 (55) ELT 437 (SC) it was held that distinction has to be made between procedural condition of a technical nature and a substantive condition and non observance of the former is condonable while that of the latter may not be. 24. If we examine the condition of filing declaration in view of above observations and declarations of law by the Supreme Court, it has to be held that the benefit of notification in question is based upon the fulfilment of other conditions, like assessee being a small scale manufacture, the quantum of clearances effected in a particular year and the use of brand name etc. Filing of declaration has to be held as procedural conditions. Some conditions are substantive, mandatory and based on considerations of policy and some other merely belong to the area of procedure. It will be erroneous to attach equal importance to the non-observance of all conditions irrespective of the purposes, which they were intended to serve. As observed by the Supreme Court in the case of Union of India Vs. M/s. Wood Papers Ltd.- [1991 JT (1) 151 at 155,] that when the question is as to whether a subject falls in the notification or in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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