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TMI Blog2020 (1) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... tion No.33/99-CE or actually claimed in any of their returns whatsoever - this cannot be equated with fulfilling the conditions required under para 2 of the exemption Notification. Thus, the appellant is not entitled to the benefit of the refund claim - appeal dismissed - decided against appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... though the Commissioner(Appeals) had, in his original order, held that the appellant informed the department through RT-12 returns in December 2000, but a copy of that was only submitted by the appellant before CESTAT and the RT-12 returns did not bear any endorsement as claimed by the appellant. (4) the claim of the appellant regarding endorsement in RT-12 is a willful misstatement on their part with mala fide intention of getting benefit of exemption Notification. Thus holding, the adjudicating authority rejected refund claim as time barred. 4. Aggrieved by this order (de novo) of the adjudicating authority, the appellant appealed to the first appellate authority, who upheld the order of the adjudicating authority and rejected their appeals. Hence the present appeal. 5. Learned Counsel for the appellant would submit that they have substantially met the requirement of the exemption Notification inasmuch as they have declared in their RT-12 returns that they have expanded the capacity of their plant in order to avail the benefit of exemption Notification. The second main ground for rejection of their claims was that they are time barred. There is no dispute or doubt that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty paid less the amount of the CENVAT credit availed of, in respect of the duty paid on the inputs used in or in relation to the manufacture of goods cleared under this notification.] (c) If there is likely to be any delay in the verification, Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, shall refund the amoun ton provisional basis by the 15th of the next month to the month under consideration and thereafter may adjust the amount of refund by such amount as may be necessary in the subsequent refunds admissible to the manufacturer. 3. The exemption contained in this notification shall apply only to the following kind of units, namely :- (a) New industrial units which have commenced their commercial production or on after the 24th day of December, 1997; (b) Industrial units existing before the 24th day of December, 1997 but which have undertaken substantial expansion by way of increase in installed capacity by not less than twenty five per cent on or after the 24th day of December, 1997. 9. He would submit that this exemption Notification is a special exemption meant for North-East Region available condi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree case laws relied upon by the appellant. The second set of decisions held that the exemption Notification being an exception to the general rule, must be construed strictly against the person claiming the exemption. In view of the conflicting decisions, the question of interpretation of an exemption Notification was referred to a five member constitutional Bench of the Hon'ble Apex Court in the case of Commissioner vs. Dilip Kumar [2016 (339) ELT A-146 (SC), which has finally decided that any exemption Notification must be construed strictly and in case of any doubt, the benefit of doubt must go in favour of the Revenue and against the assessee. In view of this judgement of the constitutional Bench of Hon'ble Supreme Court, which is binding on this Tribunal, the benefit of this exemption Notification cannot be granted to the appellant as they have not fulfilled the conditions of submitting statements as per para 2 of the exemption notification. In view of the judgment of the constitutional bench in the case of Dilip Kumar (supra), RT-12 return cannot be taken as a substitute for the statements required under the notification. They have not even mentioned the benefit of this exem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment has been done. He would submit that in view of the strict interpretation of the exemption Notification with benefit of doubt going in favour of Revenue as held by the constitutional bench of the Hon'ble Supreme Court in the case of Dilip Kumar (supra) and the fact that the assessments were not challenged in these cases, no refund can be sanctioned to the appellant. Both these judgements being judgements of the Hon'ble Apex Court prospectively apply in other decisions of the Tribunal or High Courts. The appeal may therefore be rejected. 12. We have considered the arguments of both sides and perused the records. 13. We find that the exemption Notification in question is a conditional exemption Notification available by way of refund. Para 2 of that exemption Notification prescribes the procedure for claiming it. This procedure requires the manufacturer to submit a statement of duty paid etc. on a monthly basis to the Assistant/Deputy Commissioner, who is required to verify the same and refund the amount. Admittedly the appellant had not done so. We have considered the learned Counsel's arguments that the RT-12 returns submitted by them should be considered as equal to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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