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2016 (4) TMI 57 - CESTAT KOLKATA

2016 (4) TMI 57 - CESTAT KOLKATA - 2016 (337) E.L.T. 113 (Tri. - 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 No .....

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Appellants are not entitled to avail the benefit of the said Notification. - 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 .....

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e was no power to condone the delay after the expiry of 30 days period - Decided 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- .....

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n, the above-mentioned Appellants, filed necessary Applications with the Commissioner 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 .....

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.12% 97 days 01.08.2002 3. The principal ground on which the Ld. Commissioner 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 p .....

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d Application in claiming the benefit could not be filed by due date of 30.09.2009 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 & .....

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reach to the Commissioner not later than 30th day of September in a financial 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 .....

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30(thirty) days as the upper cap for accepting the application has been prescribed 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 .....

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of eligibility of benefit of Notification of 32/99-CE dt.08.07.1999,for delayed 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 juri .....

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missioner of Customs and Central Excise, as the case may be, not later than 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 .....

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or after the 1st day of April, 2008 may file an application in writing to the 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 tha .....

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the applications. 8. Needless to emphasize the principles of law governing the 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 cov .....

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preme Court has observed that the condition of Notification should strictly 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 .....

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s through utilization of Cenvat Credit which is not the prescribed mode mentioned 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 D .....

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y the duty either in cash or through account current if it wanted to avail the 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 applicati .....

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ndonation of delay beyond 30(thirty) days, we find that The Hon ble supreme 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 c .....

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er, if the Commissioner is satisfied that the appellant was prevented by sufficient 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 .....

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re was no power to condone the delay after the expiry of 30 days period. 12. 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 .....

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