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M/s. Nalari Ferro Alloys Pvt. Ltd., M/s. Satyam Alloys, M/s. Jai Kamakhya Alloys Pvt. Ltd., M/s. Khasi Alloys Pvt. Ltd., M/s. Bimala Ispat & Alloys (P) Ltd. Versus Commr. of Central Excise, Shillong

2016 (4) TMI 57 - CESTAT KOLKATA

Condonation of delay in filing an appeal / application before Commissioner (Appeals) - Claiming Benefit of Notification No.32/99-CE dated 08.07.1999 as amended - Denial of exemption as Appellants had failed to submit their applications as stipulated under the said Notification, neither by 30th of September of the respective financial year nor within the condonable period of 30(thirty) days - Held that:- In the present Notification, inter alia, it is a condition that the assesse is required to fi .....

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- On the issue of condonation of delay beyond 30(thirty) days, we find that The Hon’ble supreme Court in Singh Enterprises’ case (2007 (12) TMI 11 - SUPREME COURT OF INDIA ) held that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presente .....

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ided against assessee - Excise Appeal Nos. : E/649,650,651,652,653/2010 - Final Order Nos. A/75869-75873/KOL/2015 - Dated:- 3-11-2015 - DR. D.M. MISRA, JUDICIAL MEMBER AND SHRI H.K. THAKUR, TECHNICAL MEMBER For the Petitioner : Sri Nihar Dasgupta, Advocate & Miss Paulami Sikdar, Advocate For the Respondent : Sri K. Choudhari, Supdt. (A.R.) ORDER PER DR. D.M. MISRA 1. These Appeals are filed against respective Orders-in-Original passed by the Commissioner of Central Excise, Shillong by the af .....

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missioner of Central Excise involving delay from the due date ranging from 82(eighty two) days to 176(one hundred and seventy six) days as recorded in the respective Orders-in-Original, mentioned below:- Sl. No. Appeal No. Name of the Assessee Scheduled date for submission of claim as per Notification Date of receipt of balance sheet and the certificate from the statutory Auditor to Com. Office Total number of days delay Date of commencement of commercial production 1. EA-649/10 M/s. Nalary Ferr .....

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r rejected their applications seeking benefit of said Notification No.32/99-CE dated 08.07.1999 as amended, was that the Appellants had failed to submit their applications as stipulated under the said Notification, neither by 30th of September of the respective financial year i.e. 2009 nor within the condonable period of 30(thirty) days, as allowed under the said Notification, even though they have commenced commercial production prior to the said financial year 2009-10. Aggrieved by the said or .....

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9.2009 nor within condonable period of 30(thirty) days thereafter. He submits that since they had complied with other conditions of the Notification, the delay was unintentional and the lapse being of technical in nature, ought to have been condoned by the adjudicating authority. In support, the ld. Advocate referred to the judgements in the case of Lallubhai Amichand Ltd. - 2014 (311) ELT 929(GOI), Mangalore Chemicals & Fertilizers Ltd. v. Deputy Commissioner- 1991 (55) ELT 437 (SC), Sambha .....

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l year, and under the first proviso, discretion has been conferred on the Commissioner, to extend the due date by a further period of 30(thirty) days on showing sufficient cause by the assessee. It is his contention that to avail the benefit of Notification, the conditions laid down therein should be strictly complied and if any of the conditions are not adhered to, then benefit of the Notification cannot be extended to the assessee. In support, the ld.AR referred to the judgement of this Tribun .....

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scribed under the said Notification. In support, the ld.AR referred to the decision of this Tribunal in the case of Zenith Computers Ltd. vs. UOI - 2004 (164) ELT 24(Bom.). Also drawing analogy, from similar provisions viz. Section 35A of Central Excise Act, 1944, the ld.AR submitted that now it is well-settled principle of law that once the upper statutory time limit for filing Appeal before the Commissioner(Appeals) is 60(sixty) days, as prescribed under Section 35A of Central Excise Act,1944 .....

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ayed application claiming such benefit, it is necessary to visit the relevant clauses of the said Notification under dispute which reads as :- 2.1 [(1) Notwithstanding anything contained in paragraph 2A, the manufacturer shall have the option not to avail the rates specified in the said Table and apply to the Commissioner of Central Excise or the Commissioner of Customs and Central Excise, as the case may be, having jurisdiction over the manufacturing unit of the manufacturer for fixation of a s .....

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the 30th day of September in financial year for determination of such special rate, stating all relevant facts including the proportion in which the material or components are used in the production or manufacture of goods : Provided that the Commissioner of Central Excise or the Commissioner of Customs and Central Excise, as the case may be, may, if he is satisfied that the manufacturer was prevented by sufficient cause from making the application with the aforesaid time, allow such manufacture .....

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he Commissioner of Central Excise or Commissioner of Customs and Central Excise, as the case may be, for the fixation of a special rate not later than the 30th day of September of the financial year subsequent to the year in which it commences production. 7. Both sides agree that the appellants were required to file their applications for claiming the benefit of said Notification by 30.09.2009. However, it is pleaded that since Auditors Certificate and balance sheet of the previous year were not .....

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he claim of an exemption Notification is well-settled by now. The Hon ble Supreme Court recently in Meridian Indus. Ltd. s case (supra), reiterating the principle, observed as:- 13. The appellant is seeking the benefit of exemption Notification No.8/97-C.E.. Since it is an exemption notification, onus lies upon the appellant to show that its case falls within the four corners of this notification and is unambiguously covered by the provisions thereof. It is also to be borne in mind that such exe .....

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be followed and in case of any doubt, the same should be resolved in favour of the department. In the said case, the exemption Notification No.10/2002-CE dated 01.03.2002 prescribed two conditions for availing the benefit of concessional rate of duty @4% against the applicable rate of 16%, the assesse fulfilled one of the conditions, but failed to comply with the second condition, resulting into denial of the benefit of the said Notification. The Honble Supreme Court had confirmed the denial of .....

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ioned as per condition (ii). To put it otherwise, it is an admitted case that duty was neither paid in cash nor through account current as the duty was paid through Cenvat Credit Account and therefore the assessee did not fulfill the second condition mentioned in the notification. 3. It is trite that exemption notifications are to be construed strictly and even if there is any doubt same is to be given in favour of the Department. 4. We find that the Tribunal has decided the case in favour of th .....

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he benefit of exemption notification and not through adjustment of Cenvat Credit which is not the mode prescribed in the aforesaid conditions. Once we find that the conditions have not been fulfilled the obvious consequence would be that the assessee was not entitled to the benefit of this notification. 10. In the present Notification, inter alia, it is a condition that the assesse is required to file necessary application by 30th of September in the financial year and also under the first provi .....

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Court in Singh Enterprises case(supra) while interpreting the power vested on the Commissioner(Appeals) to condone delay and answering the question whether it could be exercised for delay beyond the statutory limit of thirty days as stipulated under section amended 35A of CEA,1944 observed as: 8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of Statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the Statute. T .....

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ficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be present .....

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We also find the principle laid down by the Honble Bombay High Court in the case of Zenith Computers Ltd.(supra) on similar question raised before it is applicable to the facts of the present case. It has been observed by the Honble High Court that an authority created under the statute cannot travel beyond the scope of the power delegated under the statute. Their Lordships held at para 16 & 17 of the judgment as :- 16. It is well settled that the statutory bodies cannot travel beyond the .....

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