TMI Blog2023 (2) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... y 2017, would fall within the definition of the term eligible unit . In view of the orders dated 23.12.2011 passed by the Commissioner (Appeals) and the order dated 07.11.2017 passed by the learned CESTAT, it cannot be disputed that the petitioner was eligible for benefit under the Notifications ab-initio. There is no doubt that in the facts as obtaining in the present case, it is clear that the petitioner had from inception indicated its intention to avail of the benefits of the Notification. It had further pursued its right to such exemption. The petitioner had prevailed before the Commissioner (Appeals) prior to the roll out of the GST Regime. The fact that the respondents had carried the matter to learned CESTAT and in the meantime, had insisted on collecting the central excise duty, which was paid by the petitioner under protest, cannot be construed to hold that the petitioner had not availed of the benefits immediately prior to 01.07.2017. It is material to note that it is not disputed that but for the controversy whether the petitioner was availing the benefit of the Notification, there is no other reason for denying the petitioner s claim for budgetary support under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme as it was not availing the Area Based Exemption under the Notification. 5. In view of the above, the principal question that needs to be addressed is whether the petitioner fulfilled the criteria as set out under the Scheme for being considered eligible for budgetary support. 6. Paragraph 1.2 of the notification dated 05.10.2017 in terms of which the Scheme was notified, expressly indicates that units which were eligible under the erstwhile Schemes and were in operation through exemption notifications issued by the Department of Revenue in the Ministry of Finance, as listed under para 2 of the said Notification would be considered eligible under the Scheme. 7. The Notification is specifically mentioned in sub-para 2.2 of the aforementioned notification dated 05.10.2017. Therefore, indisputably, those units, which were eligible for benefit of the Notification, would be eligible for the benefit under the Scheme. 8. Paragraph 4.1 of the Scheme defines the term eligible unit and is set out below: 4.1 Eligible unit means a unit which was eligible before 1st day of July, 2017 to avail the benefit of ab-initio exemption or exemption by way of refund from payment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise Act, 1944 along with penalty and interest. c. The petitioner responded to the Show Cause Notice by its letter dated 13.07.2011 enclosing therewith, the intimations dated 09.10.2009 sent to the concerned authority. The petitioner claimed that it had complied with the requirements of the Notification and was entitled to exemption from payment of excise duty. d. The Assistant Commissioner of Central Excise, Rampur did not accept the petitioner s claim and passed an order of adjudication dated 24.08.2011 denying the Area Based Exemption under the Notification on the ground of non-receipt of the intimation dated 09.10.2009. e. In view of the above, the petitioner applied for Central Excise Registration but informed the Assistant Commissioner that it would take legal recourse against the adjudication order dated 24.08.2011. According to the petitioner, it had also informed the Assistant Commissioner that the excise duty as demanded would be paid under protest. f. The petitioner paid the excise duty as demanded albeit under protest. This was also informed to the Jurisdictional Assistant Commissioner. The petitioner also informed the concerned Assistant Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner was entitled to the benefit of the Notification. As noted above, in terms of paragraph 4.1 of the Scheme, a unit, which was eligible before the first day of July 2017 to avail the exemption under the Notification as specified in paragraph 2 of the Scheme and was availing such exemption before the cut-off date of first July 2017, would fall within the definition of the term eligible unit . In view of the orders dated 23.12.2011 passed by the Commissioner (Appeals) and the order dated 07.11.2017 passed by the learned CESTAT, it cannot be disputed that the petitioner was eligible for benefit under the Notifications ab-initio. 12. Mr Harpreet Singh, learned counsel appearing for the respondents states that notwithstanding that the petitioner was eligible to avail the benefits under the Notification, it was, in fact, not availing the same prior to the cut-off date of 07.07.2017 and therefore, would be disentitled to the budgetary support under the Scheme. 13. A plain reading of paragraph 4.1 of the Scheme indicates that for a unit to qualify as an eligible unit , it is required to satisfy two conditions. First that it was eligible before first date of July 2017 to avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doubt that the petitioner has availed of the benefit under the Notification. 15. There is no doubt that in the given facts as obtaining in the present case, it is clear that the petitioner had from inception indicated its intention to avail of the benefits of the Notification. It had further pursued its right to such exemption. The petitioner had prevailed before the Commissioner (Appeals) prior to the roll out of the GST Regime. The fact that the respondents had carried the matter to learned CESTAT and in the meantime, had insisted on collecting the central excise duty, which was paid by the petitioner under protest, cannot be construed to hold that the petitioner had not availed of the benefits immediately prior to 01.07.2017. 16. The second limb of the condition that the unit must be availing of the benefit of the Notifications as mentioned in paragraph 2 of the Scheme immediately prior to 01.07.2017 is to merely distinguish those units that have elected not to avail of the area-wise exemption or the term for which such benefit was available has expired. 17. The said condition cannot be read to exclude entities that have asserted their claim for such exemption but the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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