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2016 (4) TMI 17 - CESTAT KOLKATA

2016 (4) TMI 17 - CESTAT KOLKATA - 2016 (336) E.L.T. 549 (Tri. - Kolkata) - Refund claims filed after a period of more than 5 years from the date of payment of duty - Eligibility to the benefit of refund scheme under Notification No. 33/99-CE dated-8/7/1999 under clause 3 (b) - belatedly filing substantial expansion applications and refunds - Held that:- In the present case the statement under clause 2 (a) of the exemption notification No.33/99-CUS is a mandatory condition that an assesse should .....

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mption notification or RT-12 return filed. - Specific time limits have been prescribed under Notification No. 33/99-CE for filing a refund statements under clause 2 (a) . This statement could be a specific statement under Notification No. 33/99-CE or a RT-12 Return but such statement should have a claim for refund of duty paid through PLA. The provisions of Section 11B of the Central Excise Act, 1944 are not applicable to the refunds arising out of exemption Notification No. 33/99-CE because .....

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KUR, MEMBER (TECHNICAL) For the Petitioner : Mrs. Chandreyi Alam, Advocate And Sri A.K. Raha, Spl Counsel, Sri D.K. Achariya, Spl. Counsel For the Respondent : Sri Ravi Raghavan, Advocate & Miss Satabdi Chatterjee, Advocate, Shri D. Sahoo, Advocate ORDER PER SHRI H.K.THAKUR Sr. No. Appeal No. Name of Appellant Respondent Represented by Appeal filed against 1. E/126/2008 Vernerpur. Tea Estate C. of C. Ex, Guwahati OIA No. 72/CE(A)/GHY/07 dt 09/10/2007 2. E/70214/2013 C.C.E & S. Tax, Guwah .....

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uttuck Tea Estate will be eligible to the benefit of refund scheme under Notification No. 33/99-CE dated-8/7/1999 under clause 3 (b) of the exemption notification for belatedly filing substantial expansion applications and refunds. 3. Ms.Chandreyi Alam (Advocate) appearing on behalf of the appellant M/s. Vernerpur Tea Estate argued that her client submitted refund claim under Notification No.33/99-CE dated 08.07.1999 based on the evaluation report of the Consulting Engineer, along with the relev .....

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hat in view of the following case laws there is no time bar in refund claim under Notification No.33/99-CE: (i) CCE vs. Vinay Cements Ltd. [2002 (147) ELT 724 (Tri.Kol)] (ii) CCE vs. Nirmala Tea Estate [2002 (150) ELT 639 (Tri.Kol)] 3.1 It was further argued by the learned Advocate that CBEC under Circular No.772/5/2004-CX dated 21.1.2004 for the first time clarified that there is no bar on the use of second hand machinery for undertaking substantial expansion. That only after this clarification .....

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SC)] has held that liberal construction has to be given to a beneficial Notification. 3.2 Appellant also filed copies of RT-12/ER-1 for the period July 1999 to March, 2003 and claimed that once all the relevant details are available in these returns then there is no need to file a separate monthly statement under Notification No.33/99-CE for claiming refund claims as held by this Bench in the case of CCE, Shillong vs. Vinay Cement Ltd. (supra). 4. Shri D.K.Acharya (Spl.Counsel) appearing on beha .....

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ours Revenue is to be resorted to. Learned Spl.Counsel made the Bench go through para 5 of the Order-in-Appeal dated 09.10.2007 to argue that first appellate authority has relied upon the case law of Punjab & Haryana High Court in the case of Neeldhara Weaving Factory vs. DGFT [2007 (210) ELT 657 (P & H)] wherein it was held that where no time limit is prescribed then also the right has to be exercised within a reasonable time. 5. Shri A.K.Raha (Spl.Counsel) appeared on behalf of Revenue .....

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ed to file statement by the 7th of the next month. That these requirements are made as procedures under Notification No.33/99-CE and has to be strictly followed as held by Apex Court in a series of judgements. That jurisdictional Assistant Commissioner/Deputy Commissioner did not get the opportunity to verify the genuineness of the refunds filed after six years as provided in Clause 2C(b) of this exemption Notification. He relied upon Apex Courts decision in the case of Indian Aluminium Co. Ltd. .....

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CCE, Indore [2002 (142) ELT 5(SC)] is squarely applicable. Learned Spl.Counsel also relied upon the Apex Courts decision in the case of State of Punjab Vs. Bhatinda District Co. Op. Milk P. Union Ltd. [2007 (217) ELT 325 (S.C.)] to argue that reasonability of a time limit has to be discovered from the related statutes and the rights & liability thereunder. 6. Shri Ravi Raghavan (Advocate) and Ms. Satabdi Chatterjee (Advocate) appearing on behalf of the Respondent M/s. Tyroon Tea Estate, dur .....

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7 issued to his client did not dispute substantial expansion. (iv) That the issue of substantial expansion not being carried out was not agitated in the show cause notice and department cannot raise the issue of substantial expansion not taken place due to lack of proper verification and that Revenue cannot go beyond the scope of show cause notice. Learned Advocate relied upon the following case laws in support of his argument: (a) CCE, Bngalore Vs. Brindavan Beverages (P) Ltd. [ 2007 (213) ELT .....

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d as the required statement to sanction refunds as held in the following case laws: (a) CCE Dibrugarh Vs. Mapuk Tea Estate [2007 (219) ELT 178 (Tri-Kol)] (b) Dhunseri Tea Estate Vs. CCE-Dibrugarh [2011 (274) ELT 590 (Tri-Kol)] (c) CCE, Shillong Vs. Vinay Cement Ltd. [2002 (147) ELT 724 (Tri-Kol)] (vii) That once the Respondent is eligible to the exemption then liberal interprotection should be given to the procedures, if any, not followed by virtue of case law CCE Surat I Vs. Favourite Industrie .....

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hat required certificates of Chartered Engineer regarding substantial expansion were also made available to the authorities. (iii) That there was some correspondence on expansion with the department but all the papers regarding expansion were burnt in a devastating fire that broke out in the premises of the Respondents. That refund claims were again filed in 2005. (iv) That no time limit for filing the refund claim is specified in Notification No. 33/99-CE, therefore, refunds again filed in 2005 .....

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s under Notification No. 33/99-CE in view of the following case laws: (vi) That in view of Apex Court s case law CCE & Customs, Surat Vs. Sun Pharmaceuticals Industries Ltd. [2015 (326) ELT (SC)] authorities cannot go beyond the scope of the show cause notice. 8. Heard both sides to each appeal and perused the case records. The issue involved in the present proceedings is whether refund claims filed by the Respondents/assesses, after a period of more than 5 years from the date of payment of .....

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Cements Ltd. (Supra), CCE Vs. Nirmala Tea Estate (supra), Dhunser Tea Estate Vs. CCE, Dibrugarh (supra) have been relied upon. It is observed from the facts of the relied upon case law( para-2) CCE, Shillong Vs. Vinay Cement Ltd. (supra), that all other conditions regarding eligibility of that Respondent, to claim refund under Notification No. 33/99-CE, were fulfilled. It is not coming out anywhere in facts of that relied upon case law whether substantial expansion was claimed and refund claims .....

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ion No. 33/99-CE. It was in these circumstances that this bench held that filing of a separate statements under clause 2 (a) of Notification No. 33/99-CE should be considered a procedural requirement only. Further, this bench in view of the relied upon case laws of the assesses has never held that no clause of Notification No. 33/99-CE need be followed. 8.1 The provisions contained in clauses 2 & 3 of Notification No. 33/99-CE are relevant and are reproduced below. 2. The exemption contained .....

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ay be deemed necessary, shall refund the amount of duty paid from the account current during the month under consideration to the manufacturer by the 15th of the next month. (c) If there is likely to be any delay in the verification. Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, shall refund the amount on provisional basis by the 15th of the next month to the month under consideration and thereafter may adjust the amount of refund by s .....

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er cent on or after the 24th day of December, 1997. 8.2 It has been observed by the first appellate authority in para 5 of the Order-in-Appeal No. 72/CE (A)/GHY/07 dated 9/10/2007 that CBEC Vide letter No. 354/8/98-TRU (Part-II) Dated- 6/10/1999 has clarified that provisions of Section 11B of the Central Excise Act, 1944 are not applicable to refunds under Notification No. 33/99-CE dated-8.7.1999. Therefore, both the special counsels appearing on behalf of the Revenue were making a futile attemp .....

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such notification. 8.3 The next moot point for consideration would be whether there is no time limit for filing a refund claim under Notification No. 33/99-CE and whether such refund claims should be given suo-moto by the department even if not claimed by a statement. In the present appeals only eligibility of more than 25% exemption as per clause 3 (b) has not been challenged by the Adjudicating authority and Revenue also did not file any appeal against the orders of the Adjudicating authority. .....

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) casts a duty on the Assistant Commissioner/Deputy Commissioner (AC/DC) to verify such statement and refund the amount of duty paid from account covered during the month by the 15th of next month. Clause 2 (a) of this exemption Notification cannot be read in isolation. Statement under Clause 2 (a) (whether specifically filed under exemption Notification No. 33/99-CE or in the form of RT-12 return) should have a claim for refund which shall be sanctioned by AC/DC by the 15th of next month. AC/DC .....

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opriate statements under clause 2 (a) of the Notification No.33/99-CE. It is not the case of the Respondents/assesses that their substantial expansion application was pending with the department and their refund claims filed were delayed due to non approval of expansions by the Revenue, which could have been a reasonable cause for delay in filing refund claims/statements. There is no confusion in the provisions contained in clause 3 (b) of the exemption notification that substantial expansion of .....

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ld have a claim for refund of duty paid through PLA. The provisions of Section 11B of the Central Excise Act, 1944 are not applicable to the refunds arising out of exemption Notification No. 33/99-CE because specific monthly time limits have been prescribed under this notification. Accordingly, on cumulative reading of various provisions of Notification No. 33/99-CE, we are of the considered opinion that refund claims, filed after more than 5 to 6 years of such duty payment, are clearly time bar .....

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has to be liberally interpreted in favour of the assesses. Para 31 of this case law decided by Apex Court is as follows: 31. Moreover, a liberal construction requires to be given to a beneficial notification. This Court in Commissioner of Customs (Preventive) Mumbai Vs. M. Ambalal and Company, (2011) 2 SCC 74=2010 (260) E.L.T. 487 (S.C), (in which one of us was the party) has observed that the beneficial notification providing the levy of duty at a concessional rate should be given a liberal int .....

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ent in so many words. In fact, majority of judgments emphasize that exemptions are to be strictly interpreted while some of them insist that exemptions in fiscal statutes are to be liberally interpreted giving an apparent impression that they are contradictory to each other. But this is only apparent. A close scrutiny will reveal that there is no real contradiction amongst the judgments at all. The synthesis of the views is quite clearly that the general rule is strict interpretation while speci .....

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otification No.33/99-CUS is a mandatory condition that an assesse should claim the refund of duty by 7th of the next month . This condition cannot be interpreted liberally as laid down by the Apex Court. However, accepting RT-12 return in place of specific statement could be a liberal interpretation provided such RT-12 return also specifies refund amount under Notification No. 33/99-CE. Revenue cannot be expected to grant suo-moto refund under Notification No. 33/99-CE when no such claim is made .....

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