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TMI Blog2019 (12) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... raise any objection on eligibility, the eligibility questioned in SCN had become redundant. Appeal allowed - decided in favor of appellant. - Excise Appeal No.106 of 2008, 132 of 2008 - FINAL ORDER NO. 76577-76578/2019 - Dated:- 20-11-2019 - HON BLE SHRI P.K. CHOUDHARY, MEMBER(JUDICIAL) AND HON BLE SHRI P. VENKATA SUBBA RAO, MEMBER(TECHNICAL) Shri T.R. Rustagi, Advocate for the Appellant (s) Shri R.K. Choudhuri And Shri B.N. Pal, Special Counsels for the Respondent (s) ORDER P.K. CHOUDHARY: The facts of the case in brief are that the appellant started manufacturing branded chewing tobacco in the brand name of Tulsi prior to 22.08.2001 and started availing the benefit of Notification No.32/99. The Notification No.32/99 was rescinded by new Notification No.8/04-CE dated 21.01.2004. The appellant continued to avail the benefit of exemption from payment of Central Excise Duty. Show Cause Notice dated 06.05.2006 was issued demanding duty in respect of the goods manufactured in shed No.15 and 36D on the ground that the appellants are not entitled for benefit of Notification as production in these Sheds of specified goods commenced only after 28.02.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te along with Shri B.N.Pal, Advocate, appearing on behalf of the respondent, vehemently argued that it has come to its knowledge during investigation that the Appellant filed an IEM (Industrial Entrepreneur Memorandum) in the Ministry of Commerce Industry for its unit located at Shed 6 7 Bamunimaidan Industrial Estate, Bamunimaidan, Guwahati which was duly acknowledged vide Acknowledgement dated 31.08.2000 and that a seprate IEM was field for Shed No.17 which was duly acknowledged vide acknowledgement dated 10.04.2001. Appellant also filed revised IEMs separately in respect of each of two units on the ground of expansion of capacity which were duly acknowledged vide separate Acknowledgements dated 06.12.2001. It is alleged that filing of separate IEM for each unit shows that Appellant was operating two different units. 5. The learned Special Counsel submits that in Excise Appeal No.106 of 2008 that Appellant s unit located at the Shed No.17, Bamunimaidan Industrial Estate, Bamunimaidan, Guwahati was an independent unit and not an extension of Appellant s another unit located at Shed No.6 7 in the same industrial estate. That the Appellant failed to take separate registrati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were issued alleging that Appellant s unit located at the Shed No.15 36D, Arundhoti Nagar Industrial Estate, Agartala was an independent unit, not an extension of Appellant s another unit located at Shed No.14 in the same industrial estate. That the Appellant failed to take separate registration in respect of its unti located at Shed No.15 36D, instead they got these sheds endorsed on the registration certificate granted to their unit located at Shed No.14. As the Shed No.15 36D were acquired by Appellant after eligibility cut-off date of 28.02.2001, it has therefore been alleged that tobacco products manufactured and cleared from the unit located at Shed No.15 36D were not entitled to the benefits under Notification No.69/2003- CE and 8/2004-CE. 9. Heard both sides and perused the appeal records. 10. There is no dispute that Appellant s unit located at Shed No.6 7, Bamunimaidan Industrial Estate, Bamunimaidan, Guwahati is a lawful beneficiary of Notification No.69/2003-CE dated 25.08.2003 and 8/2004-CE dated 21.01.2004, having fulfilled all qualification conditions. Date of letter issued by AIIDC allotting Shed No.6 7 in Bamunimaidan Industr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly operating two independent and self contained units, one located at Shed No.6 7 and the other located at Shed No.17 for manufacturing of chewing tobacco products. There is no allegation in show cause notice that Appellant was found operating a chewing tobacco manufacturing unit without obtaining Central Excise license. In fact, out of several serial operations required for manufacturing of different chewing tobacco products, some were carried out in the Shed No.6 7 whereas rest of operations were carried out in the Shed No.17. Show Cause Notice issuing authority has ignored to consider vital facts that both the sheds comprised of the same factory licensed under one factory license and different operations in both the sheds were carried out by common employees. 14. In regard to Industrial Entrepreneurs Memorandum (IEM) submitted by Appellant in the Ministry of Commerce Industry and relied upon in the show cause notice, it is clarified that what was submitted is the Part A of IEM which provides promoter s plan and estimation of investment, employment, consumption of raw material and production etc. Such documents are of no relevance to the present case. 15. In regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es to new industrial units as also to existing units which have undertaken substantial expansion. He stated that as per Circular No.740/56/2003-CX.3 dated 29.08.2003 issued from F.No.356/29/2003-TRU it has been clarified by CBEC, Ministry of Finance, Govt. of India that benefits of Notification No.69/2003-CE dated 25.08.2003 will apply to those units who had set up their plants in pursuance to NEIP, 1997 and continued their operations despite retrospective withdrawal of Central Excise exemption under Notification No.32/1999-CE dated 08.07.1999 on tobacco products. Conjoint reading of provisions of NEIP, 1997 and above Circular would make it clear that Central Excise exemption under Notification No.69/2003-CE as also under Notification No.8/2004-CE is applicable to new chewing tobacco units as also to those units undertaking substantial expansion. 19. Learned Advocate on behalf of the Appellant also submitted that exemption is subject to conditions i.e. duty foregone is required to be deposited in Escrow Bank Account subject to satisfaction of the Commissioner that all conditions are satisfied. This includes eligibility condition also. The appellant from time to time submitted qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lapore Tea Estate reported in 2011 (268) ELT 14 (Gau.), wherein it was held that when the duty is demanded on account of non-fulfillment of eligibility condition. This judgment arose from the decision of the Tribunal in Jellapore Tea Estate v. CCE, Shillong 2004 (174) ELT 121 (Tri.-Kol.). 24. We find that the CBEC vide Circular No.960/03/2012-CX-3 dated 17.02.2012 has clarified that new plot if added should not affect the benefit. Further vide Circular No.939/29/2010-CX dated 22.12.2010 clarified that addition of new brands would also not mean denying the benefit. Even, if the Circular is modified subsequently against the interest of the assessee, the modification applies only prospectively; Suchitra Components 2007 (208) ELT 321 (SC). 25. It is our considered view that the proceedings are not maintainable as per Section 72(6) of the Finance Act, 2011. Moreover, since IAC has examined and re-done the whole exercise again as mandated by Section 72 of the Finance Act, 2011 and did not raise any objection on eligibility, the eligibility questioned in SCN had become redundant. 26. In view of the observations made in the foregoing paragraphs, the impugned orders cannot be s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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