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TMI Blog2024 (9) TMI 1070X X X X Extracts X X X X X X X X Extracts X X X X ..... ber 26 of the serial number 273 except that they have taken credit in PLA on 22.03.2018 i.e. after the period of six months from the payment of duty on the motor vehicles. The basic requirement is that vehicle has to be used as Taxi for the purpose of availment benefit of the exemption notification. This condition has properly been fulfilled and all the relevant documents have been provided by the appellant to the department while filing the refund claims. The credit taken in PLA beyond the period of six months is only a procedural lapse and same cannot enable the department to reject the entire refund claims of the appellant, when the legislature provides that where after clearances of vehicles from the factory gate, a vehicles is used as Taxi. Same is entitled for concessional Excise Duty. Thus the substantive benefit of exemption notification cannot be denied to the appellant only on procedural lapse which has been made good at a later stage by the appellant. Time limitation - rejection of refund claims of the appellant on the ground that the refund claim is hit by time bar inasmuch as no claim has been filed within six month from the date of clearances of the said motor vehicle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintained in terms of part-V of Central Excise Manual of supplementary instructions issued by the CBEC and thereafter file claim for refund of the said amount of duty before expiry of six months from the date of duty on the said motor vehicles with the Deputy Commissioner of sales tax or Assistant Commissioner of Central Excise, as the case may be, having jurisdiction along with filing documents namely, the intimation that the amount of the refund of duty claimed has been credited by the manufacturer in his Account Current also stating that amount of credit so taken. A show cause notice dated 28.12.2017 came to be issued on the above premises i.e. for violation of condition No. 26 of Notification No. 12/2012-CE dated 17.03.2012 whereunder the appellant was asked as to why refund claim of the appellant should not be rejected as the appellant have failed to fully comply with the condition stipulated under Serial No. 26 of the above said notification. 2. The matter got adjudicated by the concerned jurisdictional Assistant Commissioner vide impugned order-in-original dated 23.03.2018 and the refund claims of the appellants were rejected by the Adjudicating Authority. The appellant ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 2005-TIOL-73-SC-CX-LB (c) Sanghvi Reconditioners Private Limited reported in 2010-TIOL-10-SC-CUS 3.2 As regards the conditions mentioned at serial 26 of the Notification No. 12/2012-CE dated 17.03.2012, learned advocate mentioned that the appellant have fulfilled the following conditions:- (a) The Appellants have paid full excise duty and infrastructure cess on the motor vehicles at the time of clearance from the factory. (b) The Appellants have availed credit of 20% of the excise duty and infrastructure cess paid on the motor vehicles in their Account Current after registration of the motor vehicles for use as Taxis (albeit after filing of the refund claim). (c) The Appellants have produced relevant certificate from the Regional Transport Authority certifying that the motor vehicles were registered solely for use as taxi. (d) The Appellants have produced their Central Excise invoices as proof of payment of full excise duty and infrastructure cess on the motor vehicles. (e) The Appellants have furnished details of the cheques by which the benefit of 20% of excise duty and entire infrastructure cess was passed on till the end customer through the dealer along with a declaration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it of the amount equal to the amount of duty paid in excess of that specified under this exemption, in the Account Current, maintained in terms of Part V of the Excise Manual of Supplementary Instructions issued by the Central Board of Excise and Customs and thereafter files a claim for refund of the said amount of duty before the expiry of six months from the date of payment of duty on the said motor vehicle, with the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, having jurisdiction, along with the following documents, namely,- (1) an intimation that the amount of refund of duty claimed has been credited by the manufacturer in his Account Current, also stating the amount of credit so taken; (2) a certificate from an officer authorised by the concerned State Transport Authority, to the effect that the said motor vehicle has been registered for sole use as ambulance or taxi, as the case may be, within three months, or such extended period not exceeding a further period of three months as the said Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, may allow, from the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit in PLA on 22.03.2018 in respect of the clearances effected during December 2016 to june'2017 and claimed to have chartered accountant's certificate as well in support of the same. 5.3 Now, going by the condition no. 26 quoted supra, the claim of the refund had to be filed within 6 months that too after taking credit in PLA. However, in this case it is admitted by the appellant that they had not taken the credit in PLA within 6 months of the clearance of the said motor vehicles and hence any claim filed within 6 months cannot be regarded as valid claim at all. Hence, on this short point itself, their claims are hit by the time bar limitation in as much as no claim could be filed within 6 months from the date of clearances of said motor vehicles. 6. We find that the basic condition for claiming the benefit of Notification No. 12/2012-CE dated 17.03.2012 is that if the vehicle having a passenger capacity of less than 13 persons and gets registered as Taxi with the State Regional Transport authority, the applicable rate of excise duty is reduced by 20% and the same has to be refunded to the manufacturer and who in turn will refund to the dealer and finally to the ultimate c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and thus understood the same consequences should ensue for the non-compliance. Shri Narasimhamurthy says that there was no way out of this situation and no adjustment was permissible, whatever be the other remedies of the appellant. There is a fallacy in the emphasis of this argument. The consequence which Shri Narasimhamurthy suggests should flow from the non-compliance would, indeed, be the result if the condition was a substantive one and one fundamental to the policy underlying the exemption. Its stringency and mandatory nature must be justified by the purpose intended to be served. The mere fact that it is statutory does not matter one way or the other. There are conditions and conditions. Some may be substantive, mandatory and based on considerations of policy and some others may 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 they were intended to serve. In Kedarnath s case itself this Court pointed out that the stringency of the provisions and the mandatory character imparted to them were matters of important policy. The Court observed : .....The object of S. 5(2)( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stopped from relying on a technicality and this is a technicality [See Wells v. Minister of Housing and Local Government: 1967 (1) WLR 1000 at 1007]. Francis Bennion in his Statutory Interpretation , 1984 edition, says at page 683 : Unnecessary technicality: Modern Courts seek to cut down technicalities attendant upon a statutory procedure where these cannot be shown to be necessary to the fulfilment of the purposes of the legislation. We also rely upon this Tribunal decision in the case of KEC International Limited vs. CCE ST, Silvasa Final Order No. 11181-11183/2024 dated 07.06.2024. The relevant portion of the order is reproduced:- 7. In this case the demanded has been confirmed by the Ld. Pr. Commissioner on the ground that the appellant has failed to produce the requisite certificate to the Deputy Commissioner of Central Excise issued by the Deputy Secretary to the Government of India in the Ministry of Non-Conventional Energy Sources/ Ministry of New and Renewable Energy as well as an undertaking that the goods will be used only in the said project and not for any other use. Ld. Counsel for the Appellant has argued that the requisite Certificate from the Ministry was endorsed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her, the purpose of required undertaking was merely to ensure that the exemption is not being misused. Once the genuineness of the invoices has been verified and found to be justify the quantum of claim of the appellant as verified by the Jurisdictional assistant Commissioner, the non-submission of undertaking by the appellant is merely procedural and the appellant should not be denied the substantial benefit merely for procedural lapse. Even the Hon ble Supreme Court in the judgment in the case of Hari Chand Shri Gopa cited by the AR has made an exception to such procedural lapse where it is ascertained that the manufacturer was eligible to avail the exemption. The Hon ble Apex Court in para 29 of the judgment has cited with approval that In J.K. Synthetics (supra), the assessee was the manufacturer of polyster chips, staple fibre and tow from Mono-Ethylene Glycol (MEG). On importing those goods, they claimed exemption from payment of additional duty of customs thereon because MEG was exempted from the payment of excise duty by virtue of notification dated 4-5-1987 issued under Section 8 of the Tariff Act. In that case, the contention was raised by the Revenue that the assessee ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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