TMI Blog2018 (7) TMI 778X X X X Extracts X X X X X X X X Extracts X X X X ..... cation No. 50/2003-C.E., the same can be considered as adequate compliance of the condition of the notification. Extended period of limitation - case of Revenue is that the appellants would not have filed the declaration had the officers not visited the factory of the appellants - Held that:- This is a presumptuous ground and cannot be said to be sufficient basis for alleging suppression - there was no suppression because the appellants had admittedly filed a late declaration and this Tribunal has taken a consistently benign view of belated filing of declaration in such cases. Besides, there is no dispute that the unit at plot no. 12 was also eligible for the same exemption - the intention to evade duty on the part of the appellants has not been clearly established - extended period cannot be invoked. Appeal allowed - decided in favor of appellant. - APPEAL NO. E/4103/2010-EX[DB] - A/62485/2018-EX[DB] - Dated:- 21-6-2018 - Mr. Ashok Jindal, Member (Judicial) And Mr. Devender Singh, Member (Technical) Present for the Appellant(s): Sh. B.L. Narsimhan, Advocate Present for the Respondent(s): Sh. G.M. Sharma, A.R. ORDER Per : Devender Singh The appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by the appellants, it was observed that the appellants have opted for exemption under Notification No. 50/2003-CE dt. 10.06.2003. Thus it appeared that the appellants have not filed the mandatory declaration for availing exemption under said notification before effecting first clearance of excisable goods with the jurisdictional Assistant Commissioner/Deputy Commissioner. Therefore, in view of the above facts, it appeared that the appellants manufactured and cleared excisable goods during the period from 12.05.2004 to 21.09.2004 without payment of duty. Accordingly, a show cause notice was issued to the appellants demanding Central Excise duty of ₹ 1,97,42,302/- along with interest and proposing equivalent penalty under Section 11AC of the Central Excise Act, 1944. The matter was adjudicated and the said demand was confirmed along with interest and imposition of equivalent amount of penalty under Section 11AC of the Act. Aggrieved from the same, the appellants have filed this appeal. 3. Ld. Advocate for the appellants submits that their earlier unit was at plot no. 12 and they were shifting the machinery to plot no. 9 during the impugned period. He contended that eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty from there. From the statements of employees of appellants, it was concluded by Revenue that the production was going on at plot no. 9 from 12.05.2004. Accordingly, while allowing the benefit of exemption to the appellants post 19.09.2004, a show cause notice was issued by Department demanding duty from the period prior to 19.09.2004 on the ground that the appellants did not file the declaration before their first clearance from new unit. The appellants have contended that they are not contesting the issue of clearance of the goods before 19.09.2004 from new unit and, in that scenario too, non-filing of declaration will not disentitle them from the availment of exemption under Notification No. 50/2003-CE dt. 10.06.2003. We find force in the contention of the Ld. Advocate that the legal position with regard to acceptance of belated declaration for the purpose of availing exemption under Notification No. 50/2003-CE dt. 10.06.2003 is already settled and filing of late declaration can not deprive them of the benefit of exemption in this regard especially since they have been found to be eligible for the said notification as evident from the fact that post 19.09.2004, benefit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 49/2003 and 50/2003 along with details like description of goods, quantity manufactured, etc. In these factual matrix, we find that the department has been intimated about the existence of the unit, nature of products manufactured and the exemption claimed under Notification No. 50/2003-C.E. We find that the same can be considered as adequate compliance of the condition of the notification. We again note that there is no other material ground on which the exemption is sought to be denied. In view of these factual positions, we find no justification in denial of exemption and accordingly set aside the impugned order and allow the appeal. 6.3 We also find that this Tribunal in the case of Veekay Surgicals Pvt Ltd (supra) took a similar view and held as under: 5. After hearing both the sides and on perusal of the record, it appears that when the first time area based exemption was granted to the appellant then certain formalities were supposed to be complied. These formalities include filing the said declaration. Since 2005, the appellant is filing regular return to claim area based exemption as per Notification No. 50/2003. The Department never raised any objectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stice. Similarly, in the case of Mangalore Chemicals Fertilizers Ltd.-1991 (55) ELT 437 (SC) it was held that distinction has to be made between procedural condition of a technical nature and a substantive condition and non observance of the former is condonable while that of the latter may not be. 24. If we examine the condition of filing declaration in view of above observations and declarations of law by the Supreme Court, it has to be held that the benefit of notification in question is based upon the fulfilment of other conditions, like assessee being a small scale manufacture, the quantum of clearances effected in a particular year and the use of brand name etc. Filing of declaration has to be held as procedural conditions. Some conditions are substantive, mandatory and based on considerations of policy and some other merely belong to the area of procedure. It will be erroneous to attach equal importance to the non-observance of all conditions irrespective of the purposes, which they were intended to serve. As observed by the Supreme Court in the case of Union of India Vs. M/s. Wood Papers Ltd.- [1991 JT (1) 151 at 155,] that when the question is as to whether a s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
