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TMI Blog2022 (10) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... s is clear from the TRU letter dated 26.04.2012. It is seen that the appellant had purchased the entire unit, as is clear from the MOU itself. The agreement was for the transfer of the entire industrial property for a total consideration of 59,45,000/- which comprised plant and machinery also. Part of the said total consideration of Rs. 29,45,000/- related to sheds, for which the sale deed dated 14.08.2013 was executed and part comprised lease of land for which the lease deed of Rs. 29,26,376/- was executed. The balance amount was for plant and machinery. The appellant paid this entire amount of Rs. 59,45,000/- from its bank account, which is supported by the Certificate of the auditor certifying payment of entire amount as agreed - even the findings recorded by the Commissioner (Appeals) on reasons, other than the reason on which a finding was required to be given, are factually incorrect and against the terms of the notifications and the Circular. The denial of exemption to the appellant under the notification for these reasons cannot also be sustained. Once it is held that the appellant is entitled to claim exemption under the notification, all the three appeals deserve t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtain conditions. The relevant portion of the exemption notification is reproduced below:- Notification No. 50/2003-C.E., dated 10.06.2003 GOODS MANUFACTURED IN SPECIFIED AREAS IN UTTARAKHAND AND HIMACHAL PRADESH- EXEMPTION FROM EXCISE DUTY In exercise of the powers conferred by sub-section (I) of section SA of the Central Excise Act, 1944 (1 of 1944) read with sub-section (3) of section 3 of the Additional Duties of Excise (Goods of Special Importance) Act. 1957 (58 of 1957) and sub-section (3) of section 3 of the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the goods specified in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), other than the goods specified in Annexure-I appended hereto, and cleared from a unit located in the Industrial Growth Centre or Industrial Infrastructure Development Centre or Export Promotion Industrial Park or Industrial Estate or Industrial Area or Commercial Estate or Scheme Area, as the case may be, specified in (J Annexure-Il and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference to the notification. The first clearance, it was clarified, would be subsequent to the filing of the option. Thus, if a unit intended to avail the benefit of the said notification, then the unit was required to first exercise option in writing and thereafter clear the goods. The CBEC also clarified that such option could be exercised at any time. 6. CBEC also issued a Circular dated 22.12.2010 regarding the scope of the notification. The Circular provided that the provisions of the notification do not place a bar or restriction on any addition/modification in the plant or machinery or on the production of new products by an eligible unit after the cut-off date and during the exemption period of 10 years as per the notification. However, the period of exemption would remain to be 10 years and would not get extended on account of such modifications or additions under any circumstances. The relevant portion of this Circular dated 22.12.2010 is reproduced below:- 2. Representations have been received from Trade and Industry Association seeking clarification on the availability of the exemption benefit under these notifications in the following situations: (i) Where a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f its exercise. Although the units in question are admittedly eligible for exemption because they were either set up or undertook substantial expansion within the prescribed time limit, some field formations have denied them the benefit of exemption on the ground that they exercised the option after the sunset date and not at the time of commencement of commercial production. There is nothing in the language of the above provisions which lends support to this interpretation. The sunset clause is relevant only for the purposes of eligibility and the eligibility criteria that a unit has to fulfill for availing the benefit of exemption under the said notification are that a new unit should be set up or an existing unit should undertake substantial expansion and these units commence commercial production not later than the 31st day of March, 2010. It is therefore clarified that so long as the units are able to establish with documentary evidence which the field formations may verify that they meet the eligibility criteria, the benefit of exemption would be available to goods on which an excise duty or mandatory excise duty levy has been imposed subsequently. 3. As regards the requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eligible to file the declaration for availing exemption, which it intended to avail from 22.04.2013. It was also stated that the Central Excise registration would be surrendered and that it intended to add new products, namely sheet metal components for automobiles and for such manufacture it had to add new plant and machinery as well. A fresh declaration was submitted by ATSPL in the prescribed format. Subsequently, a corrigendum letter dated 22.04.2013 was filed by the ATSPL before the Assistant Commissioner mentioning therein that the exemption would be claimed from 01.05.2013. ATSPL started commercial production after availing exemption and issued the first invoice dated 03.05.2013. 10. On 27.07.2013 the entire payment in terms of the MoU was made by the appellant to ATSPL and on 14.08.2013 a sale deed and a lease deed were executed between ATSPL and the appellant. The total consideration in the sale deed dated 14.08.2013 for transfer of industrial plot was Rs. 29,45,000/-. The lease deed was also executed on 14.08.2013 for lease of the land for an amount of Rs. 29,26,376/-. The balance amount included price for plant and machinery and stock. 11. The appellant, after tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The matter was remanded to the original authority for a fresh decision. It is necessary to reproduce the entire order dated 04.01.2018 passed by the Tribunal and it is as follows:- The appellant is aggrieved by the order dated 25/04/2016 of Commissioner (Appeals-I), Meerut. The brief facts of the case are that M/s Adhunik Telecom Services Pvt. Ltd. (ATSPL) established a manufacturing unit in Uttrakhand for manufacture of sheet metal components and auto parts. They have availed area based exemption under Notification 50/2003-CE dated 10/06/2003. However, on 06/04/2010 ATSPL gave an intimation to the Revenue to opt out of the area based exemption scheme for the financial year 2010-2011 thereafter they continued to discharge Central Excise duty without availing the exemption. The appellant purchased the manufacturing facility in terms of MoU dated 01/03/2013. They have taken possession of the unit on 14/08/2013 after the execution of sale deed for the said purchase. In the meantime, on 06/04/2013 ATSPL gave intimation to the Jurisdictional Assistant Commissioner for availing the area based exemption w.e.f. 22/04/2013. Previous to that date, they were paying applicable excise du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if any, will not arise prior to such intimation. The requirement to file intimation is a statutory condition and cannot be considered as procedural. 4. We have heard both the sides and perused the appeal record. The dispute in the present case mainly relates to the fact relating to the date of change of ownership of the unit and the date of filing intimation by the appellant to avail the area based exemption. We note that the notification stipulates as below:- (i) The manufacturer who intends to avail of the exemption under this notification shall exercise his option in writing before effecting the first clearance and such option shall be effective from the date of exercise of the option and shall not be withdrawn during the remaining part of the financial year . 5. It is clean-that the statutory mandate is that the manufacturer should opt in writing before affecting the first clearance. Such option shall be effective from the date of exercise and shall not be withdrawn during the remaining part of the financial year. Except for this stipulation, we could not get any other provision with reference to opt in or opt out of the scheme during the operation of the said n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assailed by the appellant before the Commissioner (Appeals) by filing Appeal Number 79 of 2019. 18. It also needs to be pointed out that pursuant to the order passed by the Tribunal on 04.01.2018, the Assistant Commissioner passed an order dated 17.09.2019 denying the exemption claimed by the appellant under the notification. The Assistant Commissioner noted that the issue involved was whether the appellant had filed the declaration for availing the benefit of exemption on 27.08.2013 or on 06.02.2015 and decided this issue in favour of the appellant by holding that the declaration was filed by the appellant on 27.08.2013. The Assistant Commissioner, however, undertook a fresh look of the entire case, as according to the Assistant Commissioner such an exercise was also required to be undertaken in terms of the order passed by the Tribunal on 04.01.2018. The Assistant Commissioner then observed that the availability of the benefit of exemption cannot only be mapped only to the aspect as to when the declaration was filed but the pivitol issue was whether the appellant was eligible to the benefit of exemption. On this issue, the Assistant Commissioner observed that ATSPL had not co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as gone beyond the directions of CESTAT while remanding the matter. I find that in view of the false stand taken by the appellant amounting to perjury before CESTAT with respect to the letter dated 8.4.2010, it was extremely important for the Adjudicating authority to examine all the issues especially with respect to the factual position . 10. In view of the above discussions and findings, the appeal bearing No. 70/CE/APPL/DDN/2019 dated 01.11.2019 and appeal No. 79/CE/APPL/DDN/2019 dated 30.12.2019 filed by M/s M.R. Tubes Pvt. Ltd., Plot No. 03, Sector-IIDC, IIE, SIDCUL, Pantnagar, Udham Singh Nagar, Uttarakhand are here by rejected. (emphasis supplied) 21. The main submission advanced by Shri Puneet Agarwal, learned counsel for the appellant assisted by Ms. Purvi Sinha, Shri Ketan Jain and Shri Chetan Kumar Shukla is that the Assistant Commissioner and the Commissioner (Appeals) completely misconstrued the order dated 04.01.2018 passed by the Tribunal and proceeded to even examine issues which were not remitted by the Tribunal. In this connection, learned counsel pointed out from the order dated 25.04.2016 passed by the Commissioner (Appeals), which order had been assa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant that due intimation had been given to the Assistant Commissioner on 27.08.2013 to avail area based exemption. The Commissioner (Appeals), in the order dated 25.04.2016, denied exemption for the reason that it was only on 06.02.2015 that the appellant informed the Department of its intention to avail the benefit of the notification after 23 months from the singing of the MoU on 01.03.2013 and that the appellant could not claim exemption when the original owner had given up its claim for exemption in 2010. 24. It is clear from the order dated 04.01.2018 of the Tribunal that the only issue that was remitted to the adjudicating authority was to determine the date on which intimation was given by the appellant to avail the areas based exemption. Paragraph 6 of the order of the Tribunal is very explicit in this regard as it records that the matter will be decided after verification of the facts, as discussed above. Paragraphs 4 and 5 of the order of the Tribunal make it clear that what was in dispute was the date of filing of intimation by the appellant for claiming the exemption. 25. The Assistant Commissioner, pursuant to the remand order of the Tribunal, decided thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at what was remanded was a classification dispute viz Heading 84.09 Vs. Heading 87.14/85.03. The third entry viz. Heading 84.79 was not a part of the dispute considered by the Bench . It was found that the authorities had not applied their mind to the rules of interpretation of the Tariff or to the technical evidence adduced by the assessee. Therefore, the case was remanded for de novo consideration and decision and the assessee was given liberty to produce any additional evidence to support their claim. The learned counsel has argued that it was an open remand and, therefore, it was open to the assessee to claim classification of the goods under a different heading before the lower authority. We are unable to agree with this proposal. The remand order is specific . The case before The Tribunal was remanded to the original authority. The case before the Tribunal was essentially of classification dispute viz. Heading 84.09 Vs. Heading 87.14/85.03. It was this case which, was remanded and, therefore, it cannot be said that the remand was open enough to enable the assessee to claim anything they wanted. Xxxxxxxxxx The remand order passed by this bench specifically states the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by CBEC. The exemption under the notification is qua the unit and an eligible unit can add new products, new plant and machinery and can also transfer the unit to a new owner without affecting the exemption. The provisions of the notification do not place a bar or restriction on any addition/modification in the plant or machinery or on the production of new products by an eligible unit after the cut-off date and during the exemption period of ten years as per the notification. This position not only transpries from the decision of the Tribunal in Richfeel Health and Beauty Pvt. Ltd. v/s. Commissioner of Central Excise Service Tax, Shimla [MANU/CJ/0195/2018] but also from the CBEC Circular dated 22.12.2010, which Circular is binding on the Revenue. 34. The appellant could have exercised option for availing the benefit of the notification even after the sunset clause. Sunset clause is only relevant for the purpose of eligibility and there is no bar for filing the declaration after the sunset clause. This is clear from the TRU letter dated 26.04.2012. The aforesaid TRU letter was also examined by a Division Bench of the Tribunal in Maha Lakshmi Packagers vs. CCE [MANU/CE/0613/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the adjudicating authority to examine only the limited issue regarding date on which the appellant had filed the declaration for claiming the benefit of the exemption. The appellant had not disputed that ATSPL had expressed its unwillingness to pursue with its claim for claiming exemption under the notification by the letter dated 06.04.2010. The letter dated 08.04.2010 was a subsequent letter which also made reference to the earlier letter dated 06.04.2010. 37. The Commissioner (Appeals) also committed an error in holding that the appellant had not taken the unit run by ATSPL, since it had only taken the land and premises. 38. It is seen that the appellant had purchased the entire unit, as is clear from the MOU itself. The agreement was for the transfer of the entire industrial property for a total consideration of 59,45,000/- which comprised plant and machinery also. Part of the said total consideration of Rs. 29,45,000/- related to sheds, for which the sale deed dated 14.08.2013 was executed and part comprised lease of land for which the lease deed of Rs. 29,26,376/- was executed. The balance amount was for plant and machinery. The appellant paid this entire amount of R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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