TMI Blog2015 (11) TMI 1339X X X X Extracts X X X X X X X X Extracts X X X X ..... . 28/6/10 or would be available from 04/11/09 - Held that:- In view of the Circular of the Board, we hold that the basis for denying the exemption on the ground that the declaration was filed after 31/3/10, is not correct. Exemption would be available only from the date from which the declaration is filed and, therefore, the exemption cannot be extended for the period prior to filing of this declaration. Moreover, the condition of filing declaration is designed to prevent the misuse of the exemption notification and to enable the Jurisdictional Assessing Officer to examine as to whether the assessee is eligible for benefit of this exemption notification or not. Therefore, the filing of this declaration cannot be said to be a pure procedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption under Notification No. 8/03-CE. On 03/11/09, the appellant unit crossed the SSI exemption limit and was no longer eligible for the SSI exemption. Immediately thereafter, the appellant switched over exemption to Notification No. 50/03-CE and as such started availing of this full duty exemption Notification number. However at that time, they did not file the required declaration for availing Notification No. 50/03-CE as per the condition of this notification. The required declaration was filed only on 28/6/10. Here it may be mentioned that in terms of para 2 of the Notification No. 50/03-CE this notification applies to two kinds of units (a) the new industrial unit set up in the areas mentioned in Annexure II and III which has com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nit from expanded capacity and there is no provision in the notification which stipulates that to avail of this exemption, the option must be exercised before the sun set date and that are eligible unit even after the 31/3/2010 can exercise the option for this exemption, that in view of this, the very basis on which the exemption is sought to be denied is totally wrong, that Tribunal in a series of judgment has held that filing of declaration is only a procedural requirement and the substantive benefit of exemption cannot be denied for non filing of declaration and in this regard he relies upon the Tribunal s judgment in the cases of Herbal Concepts Healthcare Pvt. Ltd. vs. CCE, Meerut - I reported in 2013 (294) E.L.T. 570 (Tri. - Del.) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50/03-CE. However, there is no dispute that at that stage, the appellant did not file any declaration or submitted any intimation to the Department, and that they have started availing of this exemption without filing the declaration. The declaration as per the requirement of condition No. (i) and (ii) of the first para of the exemption notification was filed only on 28/6/10. The Departments case is that in view of the sun set clause prescribed in para 3 of the notification, the declaration filed after 31/3/10 is not valid and hence the appellant would not be eligible for this exemption notification at all. However, we find that this very point had been considered by the Board and the Board vide Circular No. 332/23/11-TRU dated 26/4/12 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em the benefit of exemption on the ground that they exercised the option after the sunset date and not at the time of commencement of commercial production. There is nothing in the language of the above provisions which lends support to this interpretation. The sunset clause is relevant only for the purposes of eligibility and the eligibility criteria that a unit has to fulfil for availing the benefit of exemption under the said Notifications are that a new unit should be set up or an existing unit should undertake substantial expansion and these units commence commercial production not later than the 31st day of March, 2010. It is, therefore, clarified that so long as the units are able to establish with documentary evidence which the fiel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we hold that the basis for denying the exemption on the ground that the declaration was filed after 31/3/10, is not correct. 7. Next point of dispute is as to whether the benefit of this notification would be available only w.e.f. 28/6/10 or would be available from 04/11/09. In this regard there is no dispute that the appellant had not filed the required declaration. There is also no evidence that they had informed to the Department by any other communication or had mentioned the availment of this exemption in the ER-1 returns filed by them. In terms of Condition (i) of the exemption notification the manufacturer who intends to avail of this exemption under this notification, shall exercise his option in writing before effecting the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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