2018 (6) TMI 1726 - HC - Central Excise

Area Based Exemption - Industrial Policy for the North Eastern Region - exemption of excise duty by way of refund - stand of the authorities justifying the refusal to the exemption was that under the notification of 18-7-2009 the benefit is for a period of ten years from the date of the notification and hence further exemption cannot be given after expiry of the period of ten years from the said notification - HELD THAT - Under the notification of 8-7-1999 as made applicable to the appellant by the notification of 12-2-2002 upon their location being included the appellant would be entitled to exemption for a period of ten years from 8-7-1999. The notifications dated 8-7-1999 and 12-2-2002 have to be interpreted in a manner that once a particular industrial unit is brought within the purview of the notification of 8-7-1999 by including through an amendment made by the notification of 12-2-2002 the exemption benefit provided by the notification of 8-7-1999 would be squarely applicable in respect of such industrial unit. The notification of 8-7-1999 having specifically provided that the exemptions would be available for a period of 10 years w.e.f. the date of the said notification i.e. 8-7-1999 any industrial unit subsequently brought within the purview of the notification by virtue of any later amendment would also be entitled to the benefit of exemption from 8-7-1999. The contention sought to be raised by the respondent authorities that the appellant would be entitled to the benefit of exemption from the date of the notification of 12-2-2002 inasmuch as only after the said notification the appellant is entitled for an exemption and that such exemption would come to an end on the expiry of 10 (ten) years from the notification of 8-7-1999 would be unacceptable. The said contention would not only be contrary to the provisions of the notifications dated 8-7-1999 and 12-2-2002 but also would amount to giving a constricted interpretation to the provisions of the notifications which would be impermissible in view of the aforesaid provisions of law. The appellant would be entitled to the benefit of exemption from excise duties for a period of 10 (ten) years w.e.f. 8-7-1999 - Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Interpretation of the Industrial Policy for the North Eastern Region regarding exemption from income tax and excise duty.
2. Validity and applicability of Notification No. 32/99-C.E., dated 8-7-1999 and its amendment by Notification No. 5/2002-C.E., dated 12-2-2002.
3. Determination of the commencement date for the exemption period.
4. Legality of the eligibility order dated 31-1-2003.
5. Applicability of the rule of strict interpretation to exemption notifications.
6. Entitlement of the appellant to the exemption benefit from excise duties.

Detailed Analysis:

1. Interpretation of the Industrial Policy for the North Eastern Region:
The Industrial Policy for the North Eastern Region, notified by an Office Memorandum, provided that industrial activities would be free from income tax and excise duty for ten years from the commencement of production.

2. Validity and Applicability of Notification No. 32/99-C.E., dated 8-7-1999 and its Amendment:
The Central Government issued Notification No. 32/99-C.E. on 8-7-1999 under various sections of the Central Excise Act, 1944, and other related acts, providing excise duty exemptions to units in specified locations for ten years from the notification date or commencement of production, whichever is later. The amendment by Notification No. 5/2002-C.E., dated 12-2-2002, added more locations but did not alter the original provisions.

3. Determination of the Commencement Date for the Exemption Period:
The appellant's industrial unit commenced production on 18-12-1998 but was not initially in a specified location. After the amendment on 12-2-2002, the location was included, making the unit eligible for exemption. The eligibility order dated 31-1-2003 granted a ten-year exemption from 12-2-2002. However, authorities later refused benefits post 8-7-2009, asserting the ten-year period started from the original notification date, 8-7-1999.

4. Legality of the Eligibility Order dated 31-1-2003:
The Commissioner of Appeals and CESTAT, Kolkata, held that the eligibility order providing a ten-year exemption from 12-2-2002 lacked legal basis. They concluded that the ten-year period must be calculated from the original notification date, 8-7-1999.

5. Applicability of the Rule of Strict Interpretation to Exemption Notifications:
The CESTAT, Kolkata, applied the rule of strict interpretation, stating that the ten-year period must be calculated from the date of the original notification. They referenced the Supreme Court decision in Grasim Industries Ltd. v. C.C.E., Bhopal, supporting recovery of erroneously refunded excise duty.

6. Entitlement of the Appellant to the Exemption Benefit from Excise Duties:
The appellant argued for a ten-year exemption from 12-2-2002, but the court upheld the CESTAT's interpretation that the period started from 8-7-1999. The court referenced the Supreme Court decision in Union of India v. Wood Papers Ltd., emphasizing that once an exemption applies, it should be liberally construed. The court concluded that the appellant is entitled to the exemption for ten years from 8-7-1999 and set aside the orders of the Deputy Commissioner, Commissioner (Appeals), and CESTAT.

Conclusion:
The appellant is entitled to the benefit of exemption from excise duties for ten years from 8-7-1999. The authorities must ensure the appellant receives this benefit, potentially through refunds if duties have been paid. The appeal is allowed to this extent.