TMI Blog2016 (4) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... in the specific statement under the exemption 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 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 barred. - Decided against assessee - Appeal No. E/126/2008, E/70214/2013,E/70215/13, E/70216/13, E/70217/2013 - Order No. FO/75208-75212/2016 - Dated:- 29-2-2016 - D.M. MISRA, MEMBER (JUDICIAL) AND SHRI H.K.THAKUR, MEMBER (TECHNICAL) For the Petitioner : Mrs. Chandreyi Alam, Advocate And Sri A.K. Raha, Spl Counsel, Sri D.K. Achariya, Spl. Counsel For the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 appellant came to know that benefit of Notification No.33/99-CE is admissible and filed the same on 18.5.2004 within a reasonable period from the date of knowledge. That there is no time limit specified in the area based Exemption Notification No.33/99-CE for filing the refund claim if the same is admissible to appellant and is filed within the period of longevity of the Notification (i.e. upto 08.7.2009). That Apex Court in the case of CCE, Surat-I vs. Favourite Industries [2012 (278) ELT 145(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 ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f fraud and administrative inconveniences. Learned Spl. Counsel made the Bench go through the amendments carried out in Notification No.33/99-CE dated 08.07.1999 under Notification No.65/2003-CE dated 6.8.2003. That as per Clause 2A an assesse has to exercise an option. That no such option was exercised and that the ratio of Apex Court in the case of Osram Surya (P) Ltd. vs. 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, during hearing as well as through written submissions made various submission as follows. (i) That the Respondent undertook substantial expansion of more than 25% during the financial year 1998-1999 1999-2000 and the same was certified by a Chartered Engineer by a certificate dated 22/10/2006. (ii) That after unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 cannot be rejected as time barred. That a liberal approach has to be taken by department in view of following case laws : (a) Bajaj Tempo Ltd. Vs. CIT [1992 196 ITR 188, 193, 194 (SC)] (b) CIT Vs. UP Agro Industrial Corporation [1991 (188) ITR 370, 375(All)] (c) CCE, Shillong Vs. Nirmala Tea Estate [2002 (150) ELT 639 (Tri.-Kol)] (d) CCE, Shillong Vs. Shivdham Industries Pvt. Ltd. [2002 (141) ELT 272 (Tri.-Kol)]. (v) That the RT-12 returns filed by his clients can be considered as due statements 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 sid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to the Assistant Commissioner or the Deputy Commissioner of Central Excise, as the case may be by the 7th of the next month in which the duty has been paid from the account current. (b) The Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, after such verification, as may 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 such amount as may be necessary in the subsequent refunds admissible to the manufacturer. 3. The exemption contained in this notification shall apply only to the following kind of units, namely:- (a) New industrial units which have commenced their commercial production on or after the 24th day of December, 1997; (b) Industrial units existi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification 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 is further bound to allow such refund provisionally under clause 2 (C) proviso of exemption Notification if verification of the statement is likely to be delayed. It is observed that in the present proceedings RT-12 returns filed by the Respondents/assesses were not having any claim under Notification No. 33/99-CE as was the fact in the case of Dhunseri Tea Estate Vs. CCE, Dibrugarh (supra). In view of the above observations RT-12 returns of the Respondents/assesses cannot be considered as appropriate 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 cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beneficial exemptions having their purpose as encouragement or promotion of certain activities should be liberally interpreted. This composite rule is not stated in any particular judgment 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 special rule in the case of beneficial and promotional exemption is liberal interpretation. The two go very well with each other because they relate to two different sets of circumstances. 9.1 The opening few lines of para 16 of the case law CC (P) , Mumbai Vs. M/S. Ambalal Co., reproduced above, lays down that if any condition of a notification is not fulfilled the party is not entitled to the benefit of that notification. In the present case the statement under clause 2 (a) of the exemption notification No ..... 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