Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2009 (11) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2009 (11) TMI 447 - CESTAT, NEW DELHIFabrics- Notification No. 14/2002-C.E., dated 1-3-2002- the appellants challenge the orders passed by the lower authorities, original and appellate, denying the benefit of the Notification No. 14/2002-C.E., dated 1-3-2002 allegedly on misconstruction of the conditions attached to the said notification, including the Explanation No. II thereto. Held that- it create legal fiction/deeming provision/presumption of existence of documentary proof of payment of duty but does not relate to payment of duty itself. It cannot be interpreted to mean that even where product is subjected to nil rate of duty, payment of duty is to be presumed. Though it absolves assessee from their primary obligation of proof of payment of duty, legal fiction created by it is exclusively for the purpose of conditions to the Notifications which speak of actual payment. Therefore, existence of facts which could be presumed to give full effect to deeming provision would be relation to actual payment. Therefore, existence of facts which could be presumed to give full effect to deeming provision would be in relation to actual payment of duty as contemplated under conditions, and not of those facts which are neither incidental nor inevitable to payment of duty. it does not enlarge scope of the conditions and cannot be extended beyond its own scope to fact of actual payment itself as it will amount to virtually its rewriting. To presume payment of duty even in a case of no such payment having been made, would amount to creation of another fiction which is not contemplated under the said explanation. If department is able to show that assessee has not paid any duty on products specified in the conditions, then claim for benefit under the notification could be denied. Explanatory note to 2002 Budget did not merely refer to entitlement to benefit of Notification, without producing documentary evidence of payment of duty but also referred to compliance of condition of payment of duty, hence could be of no help to assessee.
|