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2017 (3) TMI 781 - HC - Central ExciseNCCD - Benefit of exemption under N/N. 50/2003 dated 10th June 2003 - Area based exemption - It is the case of the appellant that after almost three and half years of the application for registration and after two and half years of the Audit Objection and response, appellant came to be served with Annexure-8 Show Cause Notice dated 26th August, 2011, whereby the appellant was called upon the pay NCCD and the cesses. A proposal was also made to impose an equal amount of penalty. Demand was raised for interest also - Held that: - the Notification does not extend the benefit of exemption from NCCD. This interpretation flows from the plain words used and there is no room for ambiguity or construction - The appellant has no case that it has changed its position relying upon the policy decision dated 07.01.2003. The policy decision dated 07.01.2003 is followed up by the Notification to effectuate the policy decision is what apparently understood by the Authorities. The Notification took shape in a little over six months from the date of the policy decision. It is nearly after four years that the Industrial Unit commences the commercial production. By the time, the industrial unit was set up, in fact, the appellant must be attributed with clear notice of the express terms of the Notification, which does not provide for exemption from NCCD. The appellant cannot be permitted to raise a plea of promissory estoppel in the facts of this case based on the policy decision dated 07.01.2003 as there is neither pleading nor materials placed to support a finding that the appellant had altered its position acting on a promise as is said to be contained in the policy decision dated 07.01.2003. Is the Notification Contrary to the Policy and Whether the Notification Being An Implementing Notification is entitled to beneficial interpretation? - Held that: - there is no challenge to the Notification. The justification for the omission to challenge is stated to be that if the appellant challenges the Notification, it would amount to questioning the benefits, which the appellant is admittedly entitled to. It is pointed out, however, that the reliefs sought by way of Prayer No. 1, namely, declaration that the appellant is entitled to the benefit of exemption under Notification in respect of levy of duty of Excise as NCCD for a period of 10 years would suffice. The interpretation should, as far as possible, be beneficial in the sense that it should suppress the mischief and advance the remedy without doing violence to the language - The language of the Notification in question does not permit us to read into the notification the levy with which the appellant stands visited. We would be guilty of torturing out of shape the clear expressions found in the Notification. This is impermissible even if it is in the wings of the theory of beneficial construction or it being an implementing notification. Whether in the absence of Notification exempting NCCD, we could, on the strength of the Notification, as issued, vouchsafe the benefit of exemption to the appellant? - Held that: - It may be true that the goods manufactured by the appellant is to be found in the seventh schedule to the Finance Act of 2001 as also the schedule to the Excise Act mentioned in the notification. It is true that by virtue of sub-section (3) of Section 136, the provision relating to exemption from duty is made applicable to NCCD. This only means that it is open to the Authority acting under Section 5-A of the Excise Act to grant exemption from NCCD invoking the power therein, but that is of far cry from saying that since the Notification was issued under Section 5-A, it must be treated as having also impliedly granted exemption from payment of NCCD. Interest - Held that: - Having regard to Section 136(3) of the Finance Act, 2001, prima facie provisions of the Act were available to the Authorities for all purposes would come to the rescue of the respondent if the interest is levied from the relevant time, but we do not wish to finally conclude this issue as we would allow the appellant to raise this contention before the statutory authority duly constituted. We also leave open the contention of the appellant to impugn the quantum of interest. Penalty - Held that: - we would think that there is indeed express power as provision of imposition of penalty is available in respect of NCCD. As regards the quantum and even whether penalty should be imposed, we direct that it is open for the appellant to raise the contentions in a duly constituted proceeding. Appeal dismissed - decided against appellant.
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