TMI Blog2020 (1) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... der para 2 of the exemption Notification. Thus, the appellant is not entitled to the benefit of the refund claim - appeal dismissed - decided against appellant. - Excise Appeal No.75002 of 2015 - FINAL ORDER NO. 76924/2019 - Dated:- 18-12-2019 - HON BLE SHRI P.K. CHOUDHARY, MEMBER (JUDICIAL) AND HON BLE SHRI P.V. SUBBA RAO, MEMBER (TECHNICAL) Ms. Chandreyee Alam, Advocate for the Appellant (s) Shri S.S. Chattopadhyay, Authorized Representative for the Respondent (s) ORDER P.V. SUBBA RAO : This appeal is filed by the appellant challenging the Order-in- Appeal No.112/DIB/CE(A)/GHY/14 dated 10.11.2014. 2. The facts of the case in brief are that the appellant is a manufacturer of tea and has submitted an application on 02.01.2008 seeking exemption from duties of excise in terms of Notification No.33/99-CE dated 08.07.1999 on the ground that they have increased their overall installed capacity by 37% during the period 01.01.1998 to 01.07.1999. They also submitted a Chartered Engineer s assessment report for installed capacity, invoices/challans in respect of the new mac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not prove that they have informed the range office about their expansion in 2001. (3) though the Commissioner(Appeals) had, in his original order, held that the appellant informed the department through RT-12 returns in December 2000, but a copy of that was only submitted by the appellant before CESTAT and the RT-12 returns did not bear any endorsement as claimed by the appellant. (4) the claim of the appellant regarding endorsement in RT-12 is a willful misstatement on their part with mala fide intention of getting benefit of exemption Notification. Thus holding, the adjudicating authority rejected refund claim as time barred. 4. Aggrieved by this order (de novo) of the adjudicating authority, the appellant appealed to the first appellate authority, who upheld the order of the adjudicating authority and rejected their appeals. Hence the present appeal. 5. Learned Counsel for the appellant would submit that they have substantially met the requirement of the exemption Notification inasmuch as they have declared in their RT-12 returns that they have expanded the capacity of their plant in order to avail the benefit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty paid, other than the amount of duty paid by utilization of CENVAT credit under the CENVAT Credit Rules, 2001, during the month under consideration to the manufacturer by the 15th of the next month. [ Provided that such refund shall not exceed the amount of duty paid less the amount of the CENVAT credit availed of, in respect of the duty paid on the inputs used in or in relation to the manufacture of goods cleared under this notification.] (c) If there is likely to be any delay in the verification, Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, shall refund the amoun ton provisional basis by the 15th of the next month to the month under consideration and thereafter may adjust the amount of refund by such amount as may be necessary in the subsequent refunds admissible to the manufacturer. 3. The exemption contained in this notification shall apply only to the following kind of units, namely :- (a) New industrial units which have commenced their commercial production or on after the 24th day of December, 1997; (b) Industrial units existi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gue that the scope of the availability of benefit of exemption Notifications has been a matter of dispute. In several judicial fora including by the Hon ble Apex Court two types of decisions were taken. In some cases it has been held that the substantive benefit of an exemption Notification cannot be denied to the assessee on mere procedural grounds. This view was also taken in the three case laws relied upon by the appellant. The second set of decisions held that the exemption Notification being an exception to the general rule, must be construed strictly against the person claiming the exemption. In view of the conflicting decisions, the question of interpretation of an exemption Notification was referred to a five member constitutional Bench of the Hon ble Apex Court in the case of Commissioner vs. Dilip Kumar [2016 (339) ELT A-146 (SC), which has finally decided that any exemption Notification must be construed strictly and in case of any doubt, the benefit of doubt must go in favour of the Revenue and against the assessee. In view of this judgement of the constitutional Bench of Hon ble Supreme Court, which is binding on this Tribunal, the benefit of this exemption Notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer or it is a case of self-assessment, no refund can be sanctioned unless the assessment is first appealed against and revised. It has been categorically held that the definition of assessment includes self-assessment and therefore self-assessment can also be challenged before first appellate authority or higher judicial forum. It has also been held that no refund can be sanctioned unless such re-assessment has been done. He would submit that in view of the strict interpretation of the exemption Notification with benefit of doubt going in favour of Revenue as held by the constitutional bench of the Hon ble Supreme Court in the case of Dilip Kumar (supra) and the fact that the assessments were not challenged in these cases, no refund can be sanctioned to the appellant. Both these judgements being judgements of the Hon ble Apex Court prospectively apply in other decisions of the Tribunal or High Courts. The appeal may therefore be rejected. 12. We have considered the arguments of both sides and perused the records. 13. We find that the exemption Notification in question is a conditional exemption Notification available by way of refund. Para 2 of that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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