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TMI Blog2022 (9) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, the claims made by the appellant cannot be debarred on the ground of limitation. While there is no quarrel with the proposition that in view of the several clarificatory notifications issued by the Custom and Central Excise Board, that limitation provided under Section 11B of the Central Excise Act, 1944 are not applicable in case of exemptions allowable under the Notification No. 33/99-CE dated 08.07.1999, however unless suitably amended by the Central Government, the procedure prescribed thereunder including the requirement of filing statement of duty paid by the manufacturer by the 7th of next month as prescribed under Notification cannot be waived at the instance of the manufacturers/assessee unilaterally. The appellant even before this Court has not been able to substantiate its contentions that the increased installed capacity of their factory, in terms of the Notification No. 33/99-C.E. dated 08.07.1999 was brought to the notice of the Range Officer as had been claimed by the assessee before the Adjudicating Authority. Such statements of fact which could not be supported by the appellant before the adjudicating authority as well as the Appellate Authority and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel appearing for the appellant. Also heard Mr. S. C. Keyal, learned Standing counsel, Central Excise Department, appearing for the respondents. 2. This an appeal under Section 35G of the Central Excise Act, 1944 against the order dated 18.12.2019 passed by the CESTAT, Kolkata. 3. The following questions of law were raised in the appeal by the appellant/assessee. (a) Whether the Order of the Ld Tribunal (CESTAT), Kolkata, dated 18th December, 2019, rejecting the Appellant's exemption claim under the Notification 33/99-CE, dated 08.07.1999, is barred by the Principle of res judicata, as the same issue allowing the exemption benefit to the Appellant has already been decided by this Hon'ble High Court in the Judgment Order, dated 26.04.2013 in the Writ Petition No. WP(C) 83/2013? (b) Whether the Ld. Respondent Authorities have committed judicial indiscipline, while continuing revenue litigation, without taking recourse of judicial appeal against the Order of this Hon'ble Court, dated 26.04.2013, if were aggrieved ? (c) Whether the Appellant is entitled to get interest for delayed refund under the exemption scheme in terms of Section11B of the Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise duty paid, were submitted by an application dated 02.01.2008 seeking exemptions from the duty of excise in terms of Notification No. 33/99-C.E. dated 08.07.1999. The application was accompanied by the invoices, Chartered Engineer s assessment report for installed capacity, Invoices/Challans in respect of the new machinery installed, diagrammatic representation of the machineries before and after expansion. It was claimed by the assessee/appellant in their application seeking refund that the installed capacity had increased by 37% on 02.07.1999. Since the claim for refund of Central Excise duty paid was submitted after about 9(nine) years from the date of increased capacity, a show cause notice was issued vide show cause notice No. V (18)23/DC/REF/07-08/3501 dated 29.09.2008 by the jurisdictional Assessing Officer. The appellant replied to the show cause notice by submitting photocopies of the relevant documents and requested for submission of the original at the time of the hearing. At the time of hearing the matter, although two orders of the Commissioner (appeals) were produced, however, the original copies of the relevant document were produced only on 16.12.2009 on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms of the refund made by the assessee. Thereafter, an appeal was preferred before the Commissioner (Appeals). The First Appellate Authority vide order dated 10.11.2014 upheld the findings of the Adjudicating Authority and rejected the appeal preferred by the assessee/appellant. The appellant/assessee, thereafter, approached the CESTAT challenging the Appellate order dated 10.11.2014. The CESTAT by the order dated 18.12.2019 upheld the order of the Appellate Authority and dismissed the appeal preferred by the assessee/appellant. The Appellate Authority held that the exemption notification provided for separate statements to be filed and not merely RT-12 returns and it was held that the appellant did not fulfill the conditions of the exemptions notification. Further the CESTAT held that there is nothing in the returns to show that they have intended to claim the benefit of exemption under Notification No. 33/99-C.E. or had actually claimed in any of the returns whatsoever. The CESTAT held that this cannot be equated as fulfilling the conditions required under Para- 2 of the exemption notification. Being aggrieved the present appeal under Section 35G of the Central Excise Act has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enefit under the said notification and that the same was also brought to the notice of the Range Officer. No evidence in support of such statement was furnished by the appellant throughout the adjudication proceedings before the authorities below. No such documents have also been produced before this Court. 13. Mr. Keyal, learned standing counsel has referred to another Judgment of this Court rendered in Chamong Tea Company Limited (Duflating Tea Estate) Vs- Commissioner of Central Excise, Dibrugarh (C.Ex. Appeal No. 6 of 2021) which is also a judgment of a Co-ordinate Bench and submits that the said judgment while accepting the views expressed in the earlier judgments have rejected the claims of the appellant therein on the ground that there were no materials or evidence produced in support of their claims that the assessee had submitted the relevant documents in terms of the requirement of the exemption Notification No. 33/99-C.E. 14. The learned counsel for the respondents submits no evidence has been brought out by the appellant in support of their claims that the increase in the installed capacity of their factory stated to have been carried out was brought to the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the manufacturer of goods from the account current maintained under rule 9 read with rule 173G of the Central Excise Rules, 1944. 2. The exemption contained in this notification shall be given effect to in the following manner, namely :- (a) The manufacturer shall submit a statement of the duty paid from the said account current to the Assistant Commissioner or the Deputy Commissioner of Central Excise, as the case may be, by the 7th of the next month in which the duty has been paid from the account current. (b) The Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, after such verification, as may be deemed necessary, shall refund the amount of duty paid from the account current during the month under consideration to the manufacturer by the 15th of the next month. (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 amount on 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d MF Resin (ix) Methylamine or Hexamethylenetetramine or Ammonium Bi-Carbonate (x) Nitric Acid and Ammonium Nitrate (xi) Carbon Black (xii) Polymer Chips 14. Agroforestry 15. Horticulture 16. Mineral based. Explanation. For the removal of doubts, it is hereby declared that for the purposes of this notification, Mineral does not include crude petroleum oils and the expression Mineral based shall be construed accordingly. 17. Floriculture 18. Agro based 17. A perusal of the Notification No. 33/99-CE dated 08.07.1999 reveals that the procedure for claiming exemptions under the notification is provided for under Clause-2 of the said Notification. Clause 2(a) provides that a statement of duty paid from the account current is to be submitted by the manufacturer (the appellant herein) to the Assistant Commissioner or Deputy Commissioner as the case may be, by the 7th of the next month in which the duty has been paid. Under clause (b) of the said notification, it is provided that the Assistant Commissioner or the Deputy Commissioner of the Central Excise as the case may be, after such verification, as may be deemed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d at the instance of the manufacturers/assessee unilaterally. Such proposition cannot be accepted more particularly in respect of revenue matters where public finance is involved. Although in the show-cause reply, it is stated that RT-12 Returns were regularly filed but there is no statement as to whether the RT-12 Returns filed by the appellant/assessee satisfied the requirement of filing a statement as per the procedure prescribed under Clause-2(a) of the Notification No. 33/99-CE dated 08.07.1999. There is completely no averment to that effect. Rather categorical statement is made in the show-cause reply that because of different stands taken by the Department at different times the manufacturer/appellant did not submit their claims at the relevant point in time. 20. We find that in the present proceedings also there is a categorical finding by the adjudicating authority which was relied upon by the CESTAT while rejecting the appeal preferred by the appellant/CESTAT. The said findings of the appellant authority are extracted below:- During the hearing, the appellant did not submit copy of the letter acknowledged by the jurisdictional range. By their letter dated 09.03.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Appellate Assistant Commissioner and has no other ground to record in support of its conclusion, it does not act illegally or irregularly, merely because it does not repeat the grounds of the Appellate Assistant Commissioner on which the decision was given against the assessees or the department. 22. In patnaik and Co. Ltd Vs- CIT reported in (1986) 4 SCC 16, the Apex Court held that the Appellate Tribunal is the final fact-finding authority under the Income Tax Act and the High Court has no jurisdiction to go behind the statements of fact made by the Tribunal in its appellate order. The High Court may do so only if there is no evidence to support them or the Appellate Tribunal has misdirected itself in law in arriving at the findings of fact. But even there the High Court cannot disturb the findings of fact given by the Appellate Tribunal unless a challenge is directed specifically by a question framed in a reference against the validity of the impugned findings of fact on the ground that there is no evidence to support them or they are the result of a misdirection in law. Although, the said Judgments were rendered in respect of Income Tax Appeals, the ratio culled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he meaning is not manifest on the plain words of the statute. If the words are plain and clear and directly convey the meaning, there is no need for any interpretation. The Apex Court further held that a provision providing for an exemption, concession or exception, as the case may be, has to be construed strictly with certain exceptions depending upon the settings on which the provision has been placed in the statute and the object and purpose to be achieved. If exemption is available on complying with certain conditions, the conditions have to be complied with. The Apex Court held that the doctrine of substantial compliance seeks to preserve the need to comply strictly with the conditions or requirements that are important to invoke a tax or duty exemption and to forgive non-compliance for either unimportant and tangential requirements or requirements that are so confusingly or incorrectly written that an earnest effort at compliance should be accepted. 24. A mere perusal of the Notification No. 33/99-C.E. dated 08.07.1999 reveals that the conditions prescribed for claiming any exemption are clear and specific and there is no ambiguity. The conditions required to be fulfill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case since the assessee therein had fulfilled those conditions, this Court upheld the entitlement of the refund claims of the assessee therein and had held that when the twin conditions are satisfied, refund claims cannot be denied on the ground of limitation. 15. However, in the facts of the present case, there are no clear averments made by the appellant that conditions prescribed under Clause 2(A) of the Notification No. 33/99-CE dated 08.07.1999 has been fulfilled by the appellant. Rather entire thrust of the appellant s case is that notwithstanding the delay of about nine (9) years in claiming the refund, since limitation under Section 11B of the Central Excise Act, 1944 is not attracted for claiming benefits under the notification, the appellant is entitled to the refund claims made. Such contention of the appellant is clearly opposed to the law laid down this Court in M/s Jokai Agri Plantations Pvt. Ltd (Supra). 16. It is also pertinent to note that the earlier order of the Tribunal rendered in Vernerpur Tea Estate Vs. Commissioner of Central Excise, Shillong and reliance upon which was placed by the Tribunal while passing the order dated 30.08.2017 impugned in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thers will also not come to the aid of the assessee inasmuch as in the said matter, this Court allowed the said appeal only on the specific findings of fact arrived at by the First Appellate Authority. The First Appellate Authority in Mokalbari Konoi Tea Estate(supra) came to a finding that certain information and documents were found to have been submitted by the said assessee. However, in the absence of the department asking for further details, the First Appellate Authority held that the assessee was entitled to the refund under Notification No. 33/99- C.E. The said view was upheld by the Co-ordinate Bench and the appeal was allowed directing the implementation of the order of the Appellate Authority within a period of 6(six) weeks from the date of the Judgment and Order. 29. However, as discussed above, the findings of fact in the present proceedings arrived at by the Adjudicating Authority, The First Appellate Authority as well as the Tribunal are to the effect that the specific details sought for in respect of the claims made by the assessee that the expansion of the factory undertaken was informed to the jurisdictional Range Officer and the fulfillment of the conditions p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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