9911796707
TMI Blog2020 (1) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... hines before and after expansion, etc.. The department issued a show cause notice on 29.09.2008 alleging that the appellant has submitted their application after about nine years from the date of completion of expansion or the date of the said Notification. It is also alleged that they have not stated any reasons for the inordinately long delay nor submitted original copies of the relied upon documents. In reply the appellant submitted copies of the relevant documents and informed that the original copies were available in the factory. They also informed that though they have submitted reports or documents on 02.01.2008 a letter forwarding the copy of the machinery, lay out plan duly certified and accepted by the Chief Inspector of Factories was submitted and acknowledged by the jurisdictional range office. During the hearing, the appellant did not submit copy of the letter acknowledged by the jurisdictional range. By their letter dated 09.03.2010 they further said that they have actually submitted RT-12 returns to the range office informing about the registration of new machinery. The appellant was repeatedly asked, in vain, to submit the particular copy of RT-12 returns on which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for the benefit of refund under Notification No.33/99- CE dated 08.07.1999. She relied on the following case laws:- (a) CCE, Shillong v. Shiv Dham Industries Private Limited 2002 (141) E.L.T. 272 (Tri.-Kol) - in which it was held that RT-12 returns were filed within seven days from the duty paid month, they can be taken as statements showing payment of duty to avail benefit of refund of duty under Notification No.33/99. (b) CCE, Shillong v. K.K.Beverages Private Limited 2002 (148) E.L.T. 567 (Tri.-Kol) (c) CCE, Shillong v. Vinay Cement Limited 2002 (147) E.L.T. 724 (Tri.-Kol) 6. In view of the above she would urge that they are eligible for the benefit of the exemption Notification and the substantive benefit of this exemption Notification No.33/99-CE dated 08.07.1999 cannot be denied on procedural grounds especially when they had already indicated in their RT-12 returns that they are expanding the capacity of the plant in order to avail the benefit of exemption Notification. She would therefore urge that their appeal may be allowed and the impugned order may be set aside. 7. On a specific query from the Bench as to whether their RT-12 returns which have been assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, it is essential that all the conditions of the exemption Notification are met before they are given the benefit of the exemption Notification. As can be seen para 2 of the exemption Notification requires the manufacturer to submit a monthly statement to the Assistant Commissioner or Deputy Commissioner of Central Excise. It further requires the Assistant Commissioner or Deputy Commissioner to carry out the necessary verifications. Undisputedly, in this case that neither the statements were submitted by the appellant, nor was any verification carried out. He draws attention of the Bench to the copies of the RT-12 returns submitted by the appellant in the present appeal in support of their contention that they have declared necessary details in their RT-12 returns. He points out that such a declaration is neither explicit nor is available in all the RT-12 returns. In the RT-12 return dated 02.01.2001 received by the Inspector of Central Excise on 05.01.2009 it states as follows:- "N.B.: We have installed machinery in factory for exemption benefit." From the above it can neither be inferred that they were claiming the benefit of exemption Notification No.33/99 nor that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation in their RT-12 returns nor fulfilled other conditions required therein. All previous orders of this Tribunal or the Hon'ble High Courts get over-ruled in view of the judgement of the constitutional Bench of the Hon'ble Apex Court in the case of Dilip Kumar (supra). 11. He would further argue that another important aspect of this refund is whether the refund can be sanctioned without first amending the assessment itself. He would submit that the exemption Notification in question was not claimed in the RT-12 returns which were assessed/self-assessed. These returns, admittedly were neither challenged nor set aside by any higher judicial forum. The question which arises is whether refund can be claimed without revising the assessment itself and whether officers sanctioning the refund can revise the assessment/self-assessment done by the assessing officer/assessee. This issue has been decided by the Hon'ble Apex Court in the cases of Priya Blue Industries Limited v. CC(Prev.) [2004 (172) E.L.T. 145 (SC)] and CCE, Kanpur v. Flock India Private Limted [2000 (120) ELT 285 (SC)]. In both these judgements it has been held that whenever a refund arises out of an assessment, it cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s has been held by the CESTAT in the cases relied upon by her. Clearly the exemption Notification provides for a separate statement and not merely the RT-12 returns which have to be filed in the way. Therefore to that extent the appellant has not fulfilled the condition of the exemption Notification. Secondly we have also examined the copies of RT-12 returns submitted by the learned Counsel in the appeal book. We find except for the cursory remark on one of the returns stating that they are expanding the capacity of the plant to claim exemption. There is nothing in the returns to show that they had intended to claim the benefit of exemption Notification No.33/99-CE or actually claimed in any of their returns whatsoever. In our considered view, this cannot be equated with fulfilling the conditions required under para 2 of the exemption Notification. We respectfully follow the judgement of the constitutional bench of the Hon'ble Apex Court in the case of Dilip Kumar (supra) wherein it has been categorically held that benefit of an exemption Notification must be construed strictly and any benefit of doubt must go against the assessee and in favour of the Revenue. In this case the avai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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