TMI Blog2009 (8) TMI 1046X X X X Extracts X X X X X X X X Extracts X X X X ..... and which had already undertaken expansion programme prior to 7th day of January 2003. Undoubtedly, the facts in hand disclose that expansion programme of the respondents’ industrial unit and actual implementation thereof commenced much prior to 7th January 2003 and therefore, the respondents are not entitled to claim the benefit under notification in question and therefore, order of the original authority needs to be restored. Appeal allowed - decided in favor of appellant. - E/5042/2004 - 876/2009-EX(PB) - Dated:- 18-8-2009 - R.M.S. Khandeparkar and Shri B.S.V. Murthy, JJ. Shri R.K. Verma, DR, for the Appellant. Shri A.R. Madhav Rao, Advocate, for the Respondent. ORDER This appeal arises from the order dated 10th August, 2004 passed by the Commissioner (Appeals) , Meerut. By the impugned order, the appeal filed by the respondents against the order dated 15-6-2004 passed by the Deputy Commissioner, Haldwani has been set aside. By the order dated 15-6-04, the Deputy Commissioner had rejected the claim of the respondents for the benefit of exemption under Notifications No. 49/2003-C.E., dated 10-6-03 and No. 50/2003-C.E., dated 10-6-03 and had finalized assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority erred in granting exemption to the respondents under the said notification. Referring to the expression have undertaken in the said clause, and drawing our attention to the meaning of the term undertaken as is found in The World Book Dictionary edited by Clarence L. Barnhart Robert K Barnhart published by World Book, Inc., a Scott Fetzer Company as well as in a book published by Ashoka Law House, New Delhi in relation to Words Phrases, submitted that the said term refers to an activity which has commenced or begun on or after the date specified in relation to the subject to which the same refers to in the said notification. 5. Learned DR also submitted that the exemption notifications are not to be interpreted liberally but strict interpretation has to be adapted and in that connection, he drew our attention to the decision of the Apex Court in the matter of Novapan India Ltd. v. C.C.E., Hyderabad reported in 1994 (73) E.L.T. 769 (S.C.). 6. On the other hand, the learned Advocate appearing for the respondents submitted that the notification in question has been issued in terms of the Policy which was framed by Ministry of Commerce Industry, Government of India on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on have undertaken would obviously refer to the expansion work which had continued or which remained in progress on or after 7th January 2003 and it cannot be said that only those units where expansion has been effected on or after 7th January 2003 would be entitled to avail the benefit under the notification. 9. It is however sought to be contended on behalf of the respondents that the reference to the date of 7th January 2003 relates to the date from which the new industrial policy in the State was sought to be enforced and therefore, the notification was in furtherance of the object of the said industrial policy. It is further sought to be argued that the industrial policy nowhere contemplates the restriction in the manner sought to be contended on behalf of the Revenue. In the notification expression have undertaken cannot be narrowly construed to apply to those units who have undertaken the expansion only on or after the 7th day of January 2003. In that connection, referring to clause 3.1 of the Industrial Policy, it was sought to be contended by the learned Advocate for the respondents, that the said clause relates to subject Fiscal incentives to new industrial units ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in this notification shall apply to any of the said units for a period not exceeding ten years from the date of publication of this notification in the Official Gazette or from the date of commencement of commercial production, whichever is later . Plain reading of the notification would disclose that the same has been issued with reference to the industrial units located or to be located in the State of Uttranchal or State of Himachal Pradesh. Clause 2 thereof specifically provides that such exemption can be availed only in cases of two types of industrial units which are enumerated under sub -clause (a) and (b) thereof. Sub-clause (a) relates to new industrial units which have commenced their commercial production on or after the 7th day of January 2003. Sub-clause (b) relates to industrial units which were in existence even before 7th day of January 2003 but which have undertaken substantial expansion by way of increase in installed capacity by not less than 25%, on or after the 7th day of January 2003. Clause 3 specifies the period for which the exemption can be availed. It says that exemption can be availed for a period of 10 years. It also states that the period of 10 yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proposes benefit thereunder from the date of commencement of commercial production that will not help us to understand the connotation of the expression have undertaken used in clause 2(b) of the exemption notification issued under the statute dealing with the levy of excise duties. 14. It is pertinent to note that the notification was issued on 10th June, 2003. The date of 7th January 2003 was obviously related to the date of formation and enforcement of the Industrial Policy for the State. In spite of being conscious of these facts, the framers of the notification have not only used the expression have undertaken with reference to the aspect of enhancement of the production capacity in the units which existed as on 7th day of January 2003, but have also specified that such activity for the expansion has to be on or after the 7th day of January 2003. Had it been otherwise, there was no justification for repetitive use of the date of 7th January 2003 in sub-clause (b). If it had to include the units who had undertaken the expansion programme even prior to 7th day of January 2003 in the existing units on that date, there was no reason for using the expression on or after 7th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dustrial 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 . 17. The wordings in clause(b) are similar to the wordings to the sub clause (b) of clause 11 of the notification in question. With reference to that the Board had issued a Circular and stated thus in para 2 of the said Circular dated 9th July 1999 - Notification No. 32/99 exempts all excisable goods that are manufactured in 2 the two types of industrial unit mentioned in para 3 of the notification. These units are either new units which have commenced their commercial production on or after 24-12-1997, or these are industrial units which have undertaken substantial by way of increase in installed capacity by not less than 25%. The increase in capacity should have been effective on or after 24-12-1997 . 18. Referring to the above clarification by the Board, it was sought to be contended that in the similar situation it was the understanding of the Department itself that the relevant date refers to the date of the commencement of the commercial pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the matter in hand. 21. The Apex Court in Suprabhat Steel Ltd. case was dealing with the issue as to whether the industrial units which had started production prior to 1st April 1993 and whose investments in the plant and machinery did not exceed Rs. 15 crores as on 1st April 1993 would be entitled to the facilities of Sales Tax exemption on the purchase of raw material for a period of seven years from 1st April 1993 in accordance with clause 10.4(i) (b) of the Industrial Incentive Policy 1993 and whether the notification issued by the Government of Bihar dated 2nd April , 1994 in exercise of power under Section 7 of the Bihar Finance Act, 1984 , to the extent it indicated who has not availed of any facility or benefit under any industrial promotion policy was invalid as being contrary to the Policy Resolution of 1993. Clause 10.4(i)(b) of the Industrial Incentive Policy, 1993 provided that the facility for sales tax exemption on purchase of raw material would be admissible to the industrial units whose investments in plant and machinery were not exceeding Rs. 15 crores as on 1st April, 1993 for the period of 7 years from the said date. While dealing with the above issue in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the manufacture of steel ingots and therefore, all the time, it was the duty paid pig iron which was processed into ingot moulds and bottom stools and again broken into scrap and melted in the making of steel ingots. All those observations in relation to the process and entitlement of the benefit were with reference to the particular notification. It is settled law that interpretation of one notification which deals with certain circumstances and is issued for certain purpose cannot be contended to be as analogous to another notification issued in totally different circumstances, and for different purpose. 23. Considering the facts and the law as stated above, we find that there is no substance in the contentions sought to be canvassed on behalf of the respondents. Commissioner (Appeals) would have been justified in granting exemption benefit under Notification No. 49/2003 to the respondents in relation to the production if the same was as a result of the consequences of expansion in the production capacity pursuant to the expansion of the plant commenced on or after 7th January 2003. In our considered opinion, the exemption Notification No. 49/2003 would not apply to the indus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uary 2003, even such units would be entitled to avail the benefit of the notification. The contention is devoid of substance. Such an interpretation would virtually result in rewriting of the sub-clause (b) of clause 2 of the notification. For the reasons stated above, the expansion programme has to be undertaken on or after 7th January 2003 and therefore, once it is clear that expansion had already commenced prior to 7th January 2003 the same cannot be said to have been undertaken on or after 7th January, 2003. An act or activity which has already commenced prior to the specified date cannot be said to have been undertaken from such relevant date. It would amount to have undertaken prior to the specified date. Being so, the expansion programme if is required to be undertaken from 7-1-2003, if has already been undertaken prior to that day, the same cannot claim benefit under the notification which specifically grants the benefit to whose who have undertaken such expansion programme on or after 7-1-2003. 26. For the reasons stated above, the appeal succeeds and is hereby allowed and the impugned order is set aside and the order of the original authority is restored, with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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