TMI Blog2015 (12) TMI 943X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed by the LAA is set aside. - Decided in favour of assessee. - E/1243/2004 - FINAL ORDER No. 41665 / 2015 - Dated:- 10-12-2015 - Shri R. Periasami, Technical Member And Shri P. K. Choudhary, Judicial Member For the Petitioner : Shri Mohammed Zakir, Adv. For the Respondent : Shri B.Balamurugan, AC (AR) ORDER Per P. K. Choudhary The appellant filed this appeal against the order of the Commissioner (Appeals) dated 31.03.2004, confirming duty of ₹ 5,08,452/- on the clearances of tea during the period from 01.04.2000 to 31.03.2001. 2. The brief facts of the case are that the appellants are the manufacturer of tea falling under chapter sub-heading No. 0902.00 of CETA, 1985 and clearing the impugned goods on payment of central excise duty. The tea manufactured and cleared was exempted vide Notification No. 4/99-CE dated 26.11.99, w.e.f. 10.12.1999 subject to the conditions specified therein. One of the conditions was that the assessee s factory should have worked for atleast six months during the preceding financial year. The assessee had availed the benefit of exemption from duty for the financial year 2000-2001 after filing the undertaking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in fact functional and working during the entire financial year 1999-2000 and the fact is verifiable from the records maintained by them such as raw material purchase register, wages register, electricity payment details etc., which were duly produced before the adjudicating authority and he considered the same while passing the order. Hence, the findings of the Commissioner (Appeals) that the appellant factory had not been working during the financial year 1999-2000, so far as to qualify themselves for availing the benefit of exemption from duty in terms of the aforesaid notification is not correct. He further submits that the tea factory is a seasonal factory, which undertakes the process for period not exceeding seven months in a year and the intention of the legislature has been to promote not only the interest of the small growers of tea but also to help tea factories which are not in the co-operative sectors and have been in the business of manufacturing tea. During the seasonal period, the factories were working and in the non-seasonal period, they undertake the repair and maintenance works so as to keep the machineries under working condition for the next season. He relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 5.7.99 to 21.3.2000 cannot be swept under the carpet. A factory can be said to be non-working, if only the same is under lock out or on strike as there would be virtually no work under those circumstances. 15.1 The assessee had relied upon the decision of the Hon ble High Court of Madras pronounced in the case of R. Vijayakumar Vs. UOI reported in 2000 (122) ELT 670 (Mad.), I find that this decision is not in support of the assessee as the same had dismissed the appeals filed by the petitioner seeking to declare that the conditions stipulated in Sl.No. III (b) (ii) and the portion of the explanation in the preceding financial year of Notification No. 41/99-CE dated 26.11.99 as illegal and ultravires Article 14 read with Article 39 (C) of the Constitution of India. 15.2 However, I find that the evidences/documents placed before me are supportive of the contention of the assessee and due to the reasons already explained above, I am inclined to hold that the factory was working throughout the year satisfying the condition (b) (ii) at Sl.No. IV of Notification No. 41/99-CE dated 26.11.99. I agree with the assessees argument that there is no condition that the factory was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Tariff Act for the period referred to in condition (b). IV. Tea cleared by a bought leaf factory during any financial year subsequent to 1999-2000. (a) The benefit of exemption from duty will commence from the date of the undertaking with the Assistant Commissioner/Deputy Commissioner of Central Excise as specified in condition (b) : (b) The manufacturer files an undertaking that : (i) not less than two-thirds of the green leaf used by the factory, during the period from the date of the aforesaid undertaking till the end of the financial year, shall be purchased from growers, each having holding not exceeding ten hectares under tea cultivation. (ii) The factory has been working for at least six months during the year preceding the year in which the undertaking referred to in condition (b) is filed. (c) In the first week of April of each succeeding financial year the manufacturer shall submit a statement of accounts, in a format to be prescribed by the jurisdictional Commissioner of Central Excise, as proof of having fulfilled the undertaking. (d) In the event of his failur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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