9911796707
TMI Blog2023 (7) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... Sleepers and dispatched the sleepers to M/s. Rail Vikas Nigam Ltd. on payment of excise duty for railway projects which was funded by Asian Development Bank. 3. Subsequently, the revenue accorded them a permission to avail the exemption under Notification No.108/95-CE dated 28.08.1995. In terms of Notification No.108/95-CE dated 28.08.1995, the condition is that the said Notification requires production of certificate to the jurisdictional authority before clearance. Admittedly in this case the clearance were effected on 15.02.2008 and the certificate was produced only on 20.02.2008, therefore, the refund claim filed by the appellant for their earlier clearances was denied to the appellant. Against the said order the appellant is before u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esentative for the department contended that the objection raised by the Ld.Counsel with regard to filing appeal by the adjudicating authority before the Ld.Commissioner is not correct in terms of section 35E(2) of the Central Excise Act, 1944 wherein the adjudicating authority is empowered to file appeal before the Ld.Commissioner(Appeals). On merits, he submits that the Hon'ble Rajasthan High Court in the case of H.R. Steels Pvt.Ltd. v. Commissioner of Central Excise, Jaipur-I [2019 (368) ELT 52 (Raj.)] has examined the issue with regard to production of certificate after clearance and in that case the Hon'ble High Court answered in negative holding that certificate produced after goods are cleared, the benefit of Notification is not avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct [such authority or any Central Excise Officer subordinate to him] to apply to the [Commissioner (Appeals)] for the determination of such points arising out of the decision or order as may be specified by the [Principal Commissioner of Central Excise or Commissioner of Central Excise] in his order. 10. On going through the said provisions we find that the Commissioner of Central Excise (Appeals) may direct such authority to apply to the Commissioner(Appeals) for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not produced the certificate before the Assistant Commissioner of Central Excise before the clearance of the goods in question. Therefore, it is to be seen that the certificate produced later on, the appellant is entitled for benefit of the said Notification or not. 13. The appellant has relied on the decision of Tullow India Operations Ltd. (supra) wherein the Hon'ble Apex Court has held that post facto production of certificate entitles to get exemption. In the case of H.R. Steels Pvt.Ltd. (supra) the issue before the Hon'ble Apex Court was that whether the assessee has complied with the condition of Notification No.108-95-CE dated 28.08.1995 or not was raised by the Ld.Counsel for the appellant, but the Hon'ble High Court held that n ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
