TMI Blog2017 (11) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... ral lapse of delayed intimation of closure of factory when it was due to unforeseen circumstances beyond control and under immunity of Section 10 of the General Clauses Act of 1897? - Held that: - when considering the rule there are five conditions which are required to be fulfiled since the assessee is claiming exemption. If one is to claim exemption and non-payment of tax, interpretation of such exemption should be construed and it is in aid to rule. Once the interpretation is found to be proved one has to go by the rule - the rule even if it is construed liberally cannot travel beyond the next working day of the closure either it is Saturday, Sunday and public holiday or any other circumstances where the movement of a person is not possible to reach the office of the Central Government or the respondent namely in a case of curfew or any other exigency, the time can be extended and all documents on record do not show that on the date of intimation of there was curfew in the area which is to be proved by the assessee and not by the department - assessee will be entitled only for the benefit of the next working day not beyond that - decided partly in favor of appellant. Appeal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... starting of production to the Assistant commissioner of C.E., with a copy to the Superintendent of Central Excise, either prior to the date of starting production or on the date of starting production; (d) the manufacturer shall on start of production again along with the closing balance of stock on restarting the factory, intimate the reading of the electricity meter to the Assistant Commissioner of Central Excise, with a copy to the Superintendent of Central Excise; (e) the manufacturer shall while sending intimation under clause (c), declare that his factory remained closed for a continuous period starting from ... hours on ... (date) to ... hours on ... (date). 4. He contended that in view of the various judgments right from Supreme Court in case of Mangalore Chemicals Fertilizers Ltd. vs. Deputy Commissioner reported in 1991 (55) E.L.T. 437 (SC) it has been held as under:- 11. We have given our careful consideration to these submissions. We are afraid the stand of the Revenue suffers from certain basic fallacies, besides being wholly technical. In Kedarnath's case, the question for consideration was whether the requirement of the declaration under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssible for the taxing authorities to ascertain in each case whether a dealer has sold the specified goods to another for the purposes mentioned in the section. Therefore, presumably to achieve the two fold object, namely, prevention of fraud and facilitating administrative efficiency, the exemption given is made subject to a condition that the person claiming the exemption shall furnish a declaration form in the manner prescribed under the section. The liberal construction suggested will facilitate the commission of fraud and introduce administrative inconveniences, both of which the provisions of the said clause seek to avoid. (Emphasis Supplied) ( See: MANU/SC/0290/1965 : [1965] 3 SCR 626 Such is not the scope or intendment of the provisions concerned here. The main exemption is under the 1969 notification. The subsequent notification which contain condition of prior-permission clearly envisages a procedure to give effect to the exemption. A distinction between the provisions of statute which are of substantive character and were built-in with certain specific objectives of policy on the one hand and those which are merely procedural and technical in their natur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision as to exemption is the one stated by this Court in Union of India and Ors. v. Wood Papers Ltd. and Ors. JT [1991] (1) 151. ...Truly, speaking liberal and strict construction of an exemption provision are to be invoked at different stages of interpreting it. When the question is whether a subject falls in the notification or in the exemption clause then it being in nature of exception is to be construed strictly and against the subject but once ambiguity or doubt about applicability is lifted and the subject falls in the notification then full play should be given to it and it calls for a wider and liberal construction ....(Emphasis supplied) 4.1. He has also relied upon another decision of Supreme Court in case of Indian Aluminium Company Ltd. vs. Thane Municipal Corporation reported in 1991 (55) E.L.T. 454 (SC) wherein it has been held as under:- 3. The amended Rules came into force in 1970. Rule 4(2) provides for payment octroi at a lower rate by certain industrial undertakings in respect of the goods mentioned in Part IA of Schedule II to the Rules. Aluminium is at Entry No. 77. Part I-A reads thus: PART I-A List of goods on which octroi shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow the authorities can verify the necessary records which are audited and submitted to the authorities and find out whether the material was used in its own undertaking or not. We do not think we can accede to this contention. Having failed to file the necessary declaration he cannot now turn-around and ask the authorities to make a verification of some records. The verification at the time when the raw material was still there is entirely different from a verification at a belated stage after it has seized to be there. May be that the raw material was used in the industrial undertaking as claimed by the petitioner- Company or it may not be. In any event the failure to file the necessary declaration has necessarily prevented the authorities to have a proper verification. 7. In Kedarnath Jute Manufacturing Co. v. Commercial Tax Officer, Calcutta MANU/SC/0290/1965 : [1965]3SCR626 the appellant which was a public limited Company, sought exemption under the provisions of the Bengal Finance (Sales Tax) Act, 1941 in respect of certain sales but did not produce before the Officer the declaration forms from the purchaser dealers required to be produced under the proviso to that sub-c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion namely that the dealer, even without filing a declaration, can later prove his case by producing other evidence, is also rejected. This ratio applies on all fours to the case before us. As already mentioned the concession can be granted only if the raw material is used in the industrial undertaking seeking such concession. For that a verification was necessary and that is why in the rule itself it is mentioned that a declaration has to be filed in Form 14 facilitating verification. Failure to file the same would automatically disentitle the Company from claiming any such concession. 4.2. He has also relied upon the decision of Allahabad High Court in the case of Commissioner of Central Excise, Kanpur vs. Ram Shree Steels Pvt. Ltd. reported in 2011 (274) E.L.T. 30 (All.) wherein it has been held as under:- 3. The Tribunal has relied upon several decisions for abatement of the claims on the ground that substantial benefits could not be denied on procedural delay. The abatement was claimed from 28-5-1998 to 29-8-1998. The intimations required under Rule 96ZO(2) read with Section 3A(3) regarding closure, and the condition (c) to the said rule regarding start of producti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a Sunday (26.3.2000), both being holidays for the Central Excise Offices. There is nothing on record to show that the closure was preplanned or pre-scheduled. In the circumstance, it ought to have occurred to the Commissioner that it was humanly impossible for the assessee to give the intimation required under Clause (a) of Rule 96ZO(2) to the Assistant Commissioner or the Supdt. on 24.3.2000 itself. The Trade Notice, today relied on by Ld. DR. does not appear to offer any remedy to such a situation inasmuch as the Trade Notice only purports to cover the contingency of closure scheduled for Saturdays, Sundays and other holidays, in which event telegraphic intimation of closure is required to be given to the Range Officer, Divisional A.C. and the Commissioner. In the instant case, the closure has not been found to be a pre-scheduled one and, further, it occurred on a working day (24.3.2000/Friday). Hence the Trade Notice was not applicable. The assessee did what was possible for them. They gave intimation to the proper officers on 27.3.2000. Pursuant to such intimation, the Range Supdt. visited the appellants' premises and satisfied himself about the bona fides of the declare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quarely on a question identical to the one involved in this case. I follow the cited decision and hold that the appellants are entitled to abatement of duty for the 16th and 17th of May, 1998. The same ratio will apply to the 15th and 16th August, 1998. In the result, abatement claim is allowed for the four days and, to this extent, the impugned order is set aside. 4.5. He has also relied upon the another decision of Tribunal in case of Mahavir Ispat vs. Commissioner of Central Excise, Hyderabad reported in 2002 (150) E.L.T. 1071 (Tri.-Bang.) wherein it has been held as under:- 2. Issue relates to determination of annual capacity production in terms of Rule 96ZO(3) of Central Excise Rules 1944. Shri K.S. Ravishankar, Advocate appearing for the appellants submitted that the appellants have claimed abatement for the periods factory was closed but the claim has been rejected by the authorities on the ground that there was a delay in filing the intimation of closure. He said that in Appeal No. 24/01, the factory was closed for the period 7.9.1998 to 15.9.1998 and 16.10.1998 to 26.10.1998 and similarly in Appeal No. E 23/01 the factory was closed for the period 17.10.1999 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner of Central Excise of such amount as may be specified in such order, subject to the fulfilment of the following conditions viz.: (a) the manufacturer shall inform in writing about the closure to the Assistant Commissioner of Central Excise, with a copy to the Superintendent of Central Excise, either prior to the date of closure or on the date of closure; (b) the manufacturer shall intimate the reading of the electricity meter to the Assistant Commissioner of Central Excise, with a copy to the Superintendent of Central Excise, immediately after the production in his factory is stopped along with the closing balance of stock of the ingots and billets of non-alloy steel; (c) the manufacturer, when he starts production again, shall inform in writing about the starting of production to the Assistant commissioner of C.E., with a copy to the Superintendent of Central Excise, either prior to the date of starting production or on the date of starting production; (d) the manufacturer shall on start of production again along with the closing balance of stock on restarting the factory, intimate the reading of the electricity meter to the Assistant Commissioner of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d eighty days referred to in clause (a) of sub-Section (2), if it is satisfied that there was sufficient cause for not filing the same within that period. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question : Provided that nothing in this sub-Section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. (5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit. (6) The High Court may determine any issue which - (a) has not been determined by the Appellate Tribunal; or (b) has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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