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TMI Blog2022 (9) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... cata, as the same issue allowing the exemption benefit to the Appellant has already been decided by this Hon'ble High Court in the Judgment & Order, dated 26.04.2013 in the Writ Petition No. WP(C) 83/2013? (b) Whether the Ld. Respondent Authorities have committed judicial indiscipline, while continuing revenue litigation, without taking recourse of judicial appeal against the Order of this Hon'ble Court, dated 26.04.2013, if were aggrieved ? (c) Whether the Appellant is entitled to get interest for delayed refund under the exemption scheme in terms of Section11B of the Central Excise Act, 1944, considering 'relevant date' as the date of passing the Order by this Hon'ble High Court dated 26.04.2013? 4. Subsequently, by way of an affidavit the appellant reformulated the questions of law. This Court by order dated 01.02.2021 admitted the appeal and the following question of law:- (I) Whether it is correct view that RT 12 Returns submitted by the Appellant was not to be considered as Statement for refund under Para 2 of the Exemption Notification No.33/99-CE, contrary to the law declared by this Hon'ble High Court? (II) Whether it is correct view that the expan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after about 9(nine) years from the date of increased capacity, a show cause notice was issued vide show cause notice No. V (18)23/DC/REF/07-08/3501 dated 29.09.2008 by the jurisdictional Assessing Officer. The appellant replied to the show cause notice by submitting photocopies of the relevant documents and requested for submission of the original at the time of the hearing. At the time of hearing the matter, although two orders of the Commissioner (appeals) were produced, however, the original copies of the relevant document were produced only on 16.12.2009 on the date of personal hearing. However, in spite of repeated requests, the assessee could not produce any documents in support of their claims that they had informed the Range Officer in 2001 about the expansion undertaken by the Assessee. In view of the above, the claim for refund was rejected as being time barred as the same was not filed within a reasonable time. Thereafter, the appellant/assessee filed an appeal before the Commissioner, Customs and Central Excise Appeal, Guwahati. The Appellate Authority answered the appeal in favour of the appellant by holding that the appellant fulfilled all the conditions including f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed and not merely RT-12 returns and it was held that the appellant did not fulfill the conditions of the exemptions notification. Further the CESTAT held that there is nothing in the returns to show that they have intended to claim the benefit of exemption under Notification No. 33/99-C.E. or had actually claimed in any of the returns whatsoever. The CESTAT held that this cannot be equated as fulfilling the conditions required under Para- 2 of the exemption notification. Being aggrieved the present appeal under Section 35G of the Central Excise Act has been preferred. 9. The learned counsel for the appellant submits that rejection of the claims for refund by the appellant on the ground of limitation is wholly unjustified inasmuch as the Central Excise Notification No. 33/99-C.E. does not provide for any time limit or time frame within which the refund claims are required to be made. The learned counsel for the appellant referred to the judgments of this Court in WP(C) No. 82/2013 [Mokalbari Konai Tea Estate (P) -Vs- The Union of India and Ors.] rendered by a co-ordinate bench of this Court as well as WP(C) No. 83/2013 [RNT Plantations Limited -Vs- Union of India and ors.] in su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the earlier judgments have rejected the claims of the appellant therein on the ground that there were no materials or evidence produced in support of their claims that the assessee had submitted the relevant documents in terms of the requirement of the exemption Notification No. 33/99-C.E. 14. The learned counsel for the respondents submits no evidence has been brought out by the appellant in support of their claims that the increase in the installed capacity of their factory stated to have been carried out was brought to the notice of the Range Officer although several opportunities were granted by the Adjudicating Officer, the First Appellate Authority as well as the CESTAT. Consequently, no substantial question of law arises in the present proceedings and the present appeal should be dismissed. It is also submitted that the issue raised in the instant proceedings are squarely covered by the Judgment of a Coordinate Bench of this Court in Chamong Tea Company Limited (Duflating Tea Estate). 15. It is the further submission of the learned counsel for the respondents that in matters of interpretation exemption Notifications, it is to be construed strictly in case of any ambiguity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall refund the amount of duty paid from the account current during the month under consideration to the manufacturer by the 15th of the next month. (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 amount on 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. 4. 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 on or after the 24th day of December, 1997; (b) Industrial units existing before the 24th day of December, 1997 but which have undertaken substantial expansion by way of increase in installed capacity by undertaken substantial expansion by way of increase in installed capacity by not less than twenty five per cent on or after the 24th day of December, 1997. 5. The exemption contained in this notification shall apply to any of the said units ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case may be, by the 7th of the next month in which the duty has been paid. Under clause (b) of the said notification, it is provided that the Assistant Commissioner or the Deputy Commissioner of the Central Excise as the case may be, after such verification, as may be deemed necessary shall refund the amount of duty paid from account current during the month under consideration to the manufacturer by the 15th of next month. Under Clause (c) any delay in verification by the Assistant Commissioner or the Deputy Commissioner of Central Excise is likely to arise, the refund amount shall be made on provisional basis by the 15th of next month to the manufacturer under consideration and thereafter may adjust the amount of refund by such amount as may be necessary in the subsequent admissible to the manufacturer. 18. In view of such procedures having been laid down by the Notification No. 33/99-CE dated 08.07.1999 under Clause 2(A) of the said Notification, it is clear that refunds are to be claimed by filing a statement of duty paid to the Assistant Commissioner or Deputy Commissioner of Central Excise as the case may be, by the 7th of next month by the manufacturer. The Assistant Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T while rejecting the appeal preferred by the appellant/CESTAT. The said findings of the appellant authority are extracted below:- "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 they have claimed the exemption Notification and submitted the fact of expansion of their plant capacity. Therefore the Deputy Commissioner of Central Excise rejected the claim as time barred". These issues are factual issues which go to the root of the matter. The appellant even before this Court has not been able to substantiate its contentions that the increased installed capacity of their factory, in terms of the Notification No. 33/99-C.E. dated 08.07.1999 was brought to the notice of the Range Officer as had been claimed by the assessee before the Adjudicating Authority. Such statements of fact which could not be supported by the appellant before the adjudicating author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erence against the validity of the impugned findings of fact on the ground that there is no evidence to support them or they are the result of a misdirection in law. Although, the said Judgments were rendered in respect of Income Tax Appeals, the ratio culled out by the Apex Court would also be applicable in an appeal under Section 35G of the CESTAT, as an appeal under Section 35G of the Central Excise Act, is also maintainable only on substantial questions of law. 23. Insofar as the first substantial question of law is concerned, it is held that the requirement under the exemptions notification No. 33/99-C.E. is that the manufacturer shall submit a statement of duty paid from the said account current to the Assistant Commissioner or Deputy Commissioner as the case may be, by the 7th of the next month in which the duty has been paid from the account current. The further requirement is that the Assistant Commissioner or Deputy Commissioner of Central Excise as the case may be after such verification refund the amount of duty paid from the current account during the month under consideration to the manufacturer by the 15th of next month. The Tribunal had recorded a finding that ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iance should be accepted. 24. A mere perusal of the Notification No. 33/99-C.E. dated 08.07.1999 reveals that the conditions prescribed for claiming any exemption are clear and specific and there is no ambiguity. The conditions required to be fulfilled by an assessee who seek to claim the benefit under the said notification will have to satisfy the conditions prescribed. 25. In view of such specific requirements that the assessee must submit the statement of duty paid within the 7th of the next month to the Officers mentioned under the notification, submission of RT-12 returns alone by the appellant cannot be considered sufficient compliance of the notification No. 33/99-C.E. dated 08.07.1999. 26. We find that the Judgment rendered by Co-ordinate Bench of this Court in Chamong Tea Company Limited (Duflating Tea Estate) in which one of us was a Member, had dealt with and had answered this issue. The relevant paragraphs of the said Judgments are extracted below:- "13. In view of such undisputed facts, the question which essentially arises for a decision in this appeal is not whether limitation under Section 11B of the Central Excise Act, 1944 is applicable in respect of refund c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nent to note that the earlier order of the Tribunal rendered in Vernerpur Tea Estate Vs. Commissioner of Central Excise, Shillong and reliance upon which was placed by the Tribunal while passing the order dated 30.08.2017 impugned in the present appeal, has in the meantime being interfered with by the same Co-ordinate Bench of this Court. This Court in Vernerpur Tea Estate reported in 2018 0 Supreme (Gau) 69 also held that no limitation under Section 11B of Central Excise Act, 1944 will be applicable in refund claims under Notification No. 33/99-CE dated 08.07.1999, provided the twin conditions prescribed under Clause 2(A) of the Notification No. 33/99-CE dated 08.07.1999 are fulfilled. We respectfully concur with the Judgments rendered in M/s Jokai plantations (Supra) and Vernerpur Tea Estate Pvt Ltd (Supra)". 27. This Court in Chamong Tea Company Limited (Duflating Tea Estate) has held that the conditions prescribed in the Notification No. 33/99-C.E. are mandatory conditions which will have to be satisfied in order to avail the benefit under the particular notification. This Court while accepting the views of the Co-ordinate Bench in M/s Jokai Agri Plantations Pvt. Ltd (Supra) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the effect that the specific details sought for in respect of the claims made by the assessee that the expansion of the factory undertaken was informed to the jurisdictional Range Officer and the fulfillment of the conditions prescribed under Clause- 2 of the said notification were not submitted before the Adjudicating Authority or the First Appellate Authority or the Tribunal in spite of several opportunities being granted. As such, the contentions made by the assessee that they fulfill all the criteria prescribed under the Notification No. 33/99-C.E. could not be supported by the documents which they themselves had claimed to have filed before the authority concerned in support of their claims for refund. In view of the all the discussions, it cannot be said that the RT-12 returns submitted by the appellant can be considered to be a statement for refund under para- 2/Clause- 2 of the Notification No. 33/99-C.E. inasmuch as there are specific findings of facts by the Adjudicating Authority which are upheld by the First Appellate Authority and the Tribunal that the RT- 12 returns does not disclose whether the expansion has been undertaken. That apart, the Notification No. 33/99-C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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