TMI Blog2012 (12) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... Y : Shri R.K. Hasija, Advocate, for the Appellant. Shri Nagesh Pathak, AR, for the Respondent. [Order per : Justice Ajit Bharihoke, President]. The appellants are engaged in the manufacture of flexible packing material chargeable to Central Excise duty under Heading 3920 and 3923 of the Central Excise Tariff Act, 1985. Their unit is located at C-60B, Eledeco Industrial Park, Sitarganj, Distt. Udham Singh Nagar, Uttarakhand. The period of dispute in this case is from November, 2009 to October, 2010. At the relevant time, benefit of exemption was extended to the unit located in Uttarakhand under two notifications being Notification No. 50/2003-C.E. and Notification No. 49/2003-C.E. Notification No. 49/2003-C.E. was goods specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50/2003-C.E. on the ground that the appellant has not filed requisite declaration under the Notification. Thus, the demand of Rs. 8,17,73,423/- alongwith interest was confirmed. 3. The matter is listed for arguments on the stay application. However, after hearing the parties for sometime, it is noticed that this case is covered by the earlier Order No. 152/2012-EX (DB), dated 1-2-2012 of the Tribunal involving the same issue between the parties. Thus, in our view, there being no factual dispute in this case, the appeal can be taken up for final disposal. Accordingly, the requirement of pre-deposit of duty demand and interest is waived and the matter is taken up for final disposal with the consent of both sides. 4. Shri R.K. Hasija, Adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2-2012 has set aside the demand confirmed by the adjudicating authority on similar grounds by holding that the benefit of Notification No. 50/2003-C.E. cannot be denied to the assessee only because of clerical mistake in the declaration filed for claiming exemption under relevant notification. Thus, learned Counsel for the appellant has urged us to accept the appeal and set aside the impugned order. 5. Shri Nagesh Pathak, learned AR for the Revenue has pleaded that in order to avail the benefit of exemption from excise duty under Notification No. 50/2003-C.E., the appellant was required to file requisite declaration. The appellant, however, instead of filing declaration under Notification No. 50/2003-C.E., filed declaration under Notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Rules. The goods are specified in the Schedule to the Central Excise Tariff Act, 1985 (in short the Tariff Act ). The proviso makes it clear that where goods are chargeable to nil rate of duty or where the exemption from the whole of the duty of excise leviable is granted on any of the six categories enumerated, the manufacturer is required to make a declaration and give an undertaking, as specified in the Form annexed while claiming exemption for the first time under this Notification and thereafter before the 15th day of April of each financial year. As found by the forums below, including CEGAT, factually, the declaration and the undertaking were not submitted by the appellants. This is not an empty formality. It is the foundatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show that in this schedule it is clearly mentioned that plot in question is located in Khasra No. 169, 170, 171 within the limit of field of Eledeco Industrial Park, Sitarganj, Distt. Udham Singh Nagar, Uttarakhand. Thus, it cannot be said that the appellant had not supplied complete information regarding Khasra No. of the appellant s unit as required under Notification No. 50/2003-C.E. Further, on perusal of the records, we find that pursuant to the declaration submitted by the appellant, the jurisdictional Superintendent of Excise Department had visited the appellant s unit for field verification and as per his verification report addressed to the jurisdictional Assistant Commissioner, the appellant was found qualified for availing the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was sought was mentioned as 49/2003-C.E. instead of 50/2003-C.E. Therefore, this being a case of inadvertent error, ratio of above referred judgment of the Supreme Court cannot be extended to this case. 8. The real question required to be addressed by the adjudicating authority was whether or not the appellant fulfilled the condition of eligibility for exemption under Notification No. 50/2003-C.E. However, on reading of the impugned order, we find that the Commissioner (Adjudication) instead of addressing to the real issue has gone into technical details regarding the Notification No. mentioned in the declaration filed for claiming exemption. From the report of the jurisdictional superintendent of central excise, it is obvious that after ..... X X X X Extracts X X X X X X X X Extracts X X X X
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