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TMI Blog2009 (2) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... icobar Islands - Exemption In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excise Act, 1944 (1 of 1944), read with section 91 and section 93 of the Finance (No.2) Act, 2004 (23 of 2004), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts cement falling under Chapter 25, and steel falling under Chapters 72 or 73 of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) (hereinafter referred to as said goods) used in construction of houses, in tsunami affected districts of States of Tamil Nadu, Andhra Pradesh, Kerala and Union Territories of Pondicherry and Andaman and Nicobar Islands (hereinafter referred to as said areas), from the whole of the duty of excise leviable thereon under the said Acts (hereinafter referred to as the said duties). 2. The exemption contained in this notification shall apply only if the said goods are used in construction of houses, including temporary shelters (hereinafter referred to as such houses) by Non Government Organization or Voluntary Agency or Private-Public Enterprise or Rehabilitation Organization or Trust or any agency, approved by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constructed on or after the 1st April, 2005 and on or before 31st July, 2006. Notification No.35/2005-C.E. dated 29-Nov-2005 Cement and steel used in construction of houses in Tsunami affected areas -Exemption - Amendment to Notification No. 32/2005-C.E. In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excise Act, 1944 (1 of 1944), read with section 91 and section 93 of the Finance (No.2) Act, 2004 (23 of 2004). the Central Government, being satisfied that it is necessary in the public interest so to do, hereby makes the following amendments in the notification of the Government of India, in the Ministry of Finance (Department of Revenue), No.32/2005- CENTRAL EXCISE, dated the 17th August, 2005, number G.S.R. 537(E), dated the 17th August, 2005, namely:- In the said notification, in para 3,- (i) for clause (c), the following clauses shall be substituted, namely:- "(c) The approved construction agency shall file a claim for refund of the said duties paid on the said goods procured and utilised in construction of such houses by it along with a self certified consumption certificate of the said goods to the jurisdictional excise officer, on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime limit prescribed in the notification. Relying on the apex Court's judgment in M/s. Tata Iron & Steel Co. Ltd. Vs. State of Jharkand reported in AIR 2005-SC-2871, the Commissioner (Appeals) sustained the order of the original authority and rejected the claims for refund. In the judgment cited, the apex Court had held that "Eligibility clause in relation to exemption notification must be given a strict meaning." In Mittal Polypacks Vs State of Jharkand [2005 (141) STC 270 (SC)], also relied on by him, the apex Court had held that "Exemption notification has to be strictly construed. The conditions for taking benefit have to be strictly interpreted." 3. In the appeal filed by CASA, they have attributed their failure to comply with the conditions of the exemption notification to their not being familiar with the rules and procedures, they being an NGO devoted to rehabilitation work. The delay had occurred on account of delay in obtaining the required certificates from the State Government authorities. They had filed the claims belatedly thinking that the requisite certificates could be produced to the authorities as and when received. The refund claim was in time if the relevant d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which had laid down than an exemption notification should not be construed in a manner that defeated the purpose of the notification. It was also claimed that though construction materials had been purchased in the name of M/s. Methodist Engineering Co. Pvt. Ltd., Cuddalore, they had been engaged by CASA to construct houses for tsunami victims and the claims had to be allowed. 4. Appeals have been filed by the Commissioner of Central Excise, Pondicherry against orders of the Commissioner (Appeals) vacating orders of the original authority denying refund claims filed in terms of the Notifications and remanding the same for fresh adjudication. Vide orders impugned in Appeal No. E/724/07, E/79/08, and E/771/07, the Commissioner (A) vacated part of the orders of the original authority not allowing refund claimed, to the respective appellants. He found that the original authority had rejected the claims for refund on the ground of limitation prescribed in the notification. He remanded the matter holding that the claims had been filed in time. In the appeals filed by the Commissioner of Central Excise, Pondicherry, the Commissioner has submitted that the impugned orders had wrongly hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asically designed to give effect to the exemption. In other words, the mechanism had been adopted to operationalize the exemption envisaged in those two notifications. The provisions of Section 11B of the Act did not apply in the case of these notifications. These instructions were reiterated in Circular No.701/17/2003-CX. dt. 12.3.03. he held that Rule 6 (3) (b) of Cenvat Credit Rules 2004 was not applicable to the said claim as the appellants were not manufacturers and had not claimed the refund in that capacity. Moreover, the department had no case that the goods had not been used for the intended purpose or that the manufacturer of the goods involved had not paid applicable duties at the time of their clearance. In the appeal filed by the revenue, the ground taken is that barring a claim relating toe quarter ending 3/06, claims relating to quarters ending 6/05, 9/05 and 12/05 were filed beyond the time prescribed in the notification. The finding of the Commissioner (Appeals) that period of 60 days was available from the date of issue of completion certificate could not be accepted as the said finding was contrary to the terms of the notification. The impugned quantities of ceme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion if they were filed within the time limit prescribed in Section 11B of the Act. 7.1 We note that the points in dispute are the admissibility to refund claimed beyond the time limit prescribed in the subject notification; applicability of the vice of unjust enrichment in grant of refunds to the claimants and if refund could be allowed in case the duty paying documents are not in the name of the claimant concerned. 7.2 We have already held that he time limit prescribed in the Notification for claiming refund is a procedural condition and failure to fulfill the same cannot affect the entitlement of the target community to receive the relief. We find that the apex Court had observed as under inM/s. Giridarilal and sons, appellant Vs. Balbirnath Mathur & Ors. (AIR 1986 (SC 1499) as regards failure to satisfy procedural conditions to quality for eligibility to relief provided in an exemption notification. "The primary and foremost task of a court in interpreting a statue is to ascertain the intention of the legislature, actual or imputed. Having ascertained the intention, the court must then try to so interpret the statute as to promote and advance the object and purpose of the ena ..... X X X X Extracts X X X X X X X X Extracts X X X X
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