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TMI Blog2024 (12) TMI 792X X X X Extracts X X X X X X X X Extracts X X X X ..... in appeal No.452/2015 dated 29.12.2015 by which the learned appellate authority has upheld the order in original rejecting their refund claim which was premised on the claim of benefit of exemption notification No.12/2012 C.E. dated 17-03-2012 as amended. 2. The facts in brief are that the jurisdictional superintendent of central excise, upon examining the ER1 returns in respect of the appellants' clearance of goods in the month of March 2013, called upon them to pay central excise duty by a letter stating that the appellants have not fulfilled the condition of notification No.12/2012-CE dated 17-03-2012 and that it was wrongly and irregularly availed. The letter proposed initiation of action contemplated in the relevant provisions of Central Excise Rules, 2002, failing the payment of duty. In response, the appellant paid Rs.2,27,352/- with due intimation and thereafter filed a refund claim for the said amount, claiming benefit of the said exemption notification No.12/2012-CE dated 17-03-2012 as amended. 3. A show cause notice was issued proposing to reject the refund claim filed for the reasons stated therein and pursuant to the appellant's reply and hearing granted, an order in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsy, the Sl.No.336 of Notification 12/2012-CE dated 17.03.2012, the condition No.41 of the said notification, the amendment to the said condition No.41 brought in by Notification No.12/2015-CE dated 01.03.2015; Sl.No.507 of the Notification 12/2012-Cus dated 17.03.2012 and the condition 93 thereof, are reproduced below: - (i) Sl. No. 336 of Notification No. 12/2012-C.E., dated 17-3-2012 as amended for the relevant period was as follows: No. Chapter or heading or sub-heading or tariff item of the First Schedule Description of excisable goods Rate Condition No 336 Any Chapter All goods supplied against International Competitive Bidding. Nil 41 (ii) Condition 41 for the relevant period was as follows: 41. If the goods are exempted from the duties of customs leviable under the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) and the additional duty leviable under section 3 of the said Customs Tariff Act when imported into India. (iii) Condition 41 was amended by Notification No. 12/2015-C.E., dated 1-3-2015 as follows: "in Condition No. 41, under the heading "Conditions", after the entries, the following proviso shall be inserted, namely:- " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the name of the President of India for an amount equal to the duty of customs payable on such imports but for this exemption, to the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, at the time of importation and if the importer fails to furnish the final mega power status certificate wthin a period of thirty six months from the date of importation, the said securty shall be appropriated towards duty of customs payable on such imports but for this exemption. (b) In the case of imports by a Central Public Sector Undertaking, the quantty, total value, description and specifications of the imported goods are certified by the Chairman and Managing Director of the said Central Public Sector Undertaking; and (c) In the case of imports by a Private Sector Project, the quantty, total value, description and specifications of the imported goods are certified by the Chief Executive Officer of such project. 7. On a perusal of the records, it is seen that the appellant has produced the advertisement to evidence that Neyveli Lignite Corporation Limited called for International Competitive Bidding. The letter No.8/11/2003-S.Th dated 13th February ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms leviable under the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) and the additional duty leviable under section 3 of the said Customs Tariff Act when imported into India. Thus, by the very existence of a customs exemption notification simpliciter, namely, by virtue of the exemption provided at Sl.No.507 of the notification No.12/2012-Cus dated 17-03-2012, the said condition 41 as it existed for the relevant period, stood satisfied, so as to entitle the appellant to the benefit of Sl.No.336 of the notification No.12/2012-CE dated 17-03-2012. Therefore, we are of the view that the learned Appellate Authority erred in placing reliance on the proviso that came to be inserted subsequently by notification No. 12/2015-C.E., dated 1-3-2015, for denying the appellant the benefit of the said Sl.No.336 of the aforementioned Notification No.12/2012-CE ibid. 10. The learned Authorised Representative has pointed out that the original authority has also denied the benefit on the ground that the Appellant has not discharged the burden of proof to overcome the bar of unjust enrichment. We find that the learned appellate authority has not given any findings against the appellant o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd claim dated 14.02.2014, given their entitlement to the benefit of the aforementioned notification. The show cause notice issued proposing to reject the refund was replied to by the appellant. Consequent to a personal hearing granted, the adjudicating authority, though recording that the appellant has furnished the certificate with the refund claim, held that they are not entitled to the exemption and consequential refund of duty paid, as they have not fulfilled the condition of furnishing the necessary certificate before clearance of the goods. The adjudicating authority also found that the appellant had not established that the incidence of the duty for which refund claim has been filed was not passed on by the appellant to any other person. The appellate authority held that the contention of the Appellant that non production of the necessary certificate at the time of clearance of goods is a procedural lapse is not correct and further the appellant has not discharged the burden of proof cast on them that they have not passed on the duty on to their buyer, and went on to uphold the order in original on merits. 13. The learned counsel for the appellant submitted that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred by sub-section (1) of section 5A of the Central Excises and Salt Act, 1944, (1 of 1944) read with sub-section (3) of section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts all goods falling under the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) (hereinafter referred to as the said goods) when supplied to the United Nations or an international organisation for their official use or supplied to the projects financed by the said United Nations or an international organisation and approved by the Government of India, from the whole of - (i) the duty of excise leviable thereon under section 3 of the Central Excises and Salt Act, 1944 (1 of 1944); and (ii) the additional duty of excise leviable thereon under sub-section (1) of section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) : Provided that before clearance of the said goods, the manufacturer produces before the Assistant Commissioner of Central Excise having jurisdiction over his factory,- (a) xxxxx (b) xxx ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b vendor and also the goods that are to be supplied by the appellant. The said excise duty certificate is also seen signed by the Head of the Project implementing authority, the Managing Director of MPMKVVCL, the Secretary (Energy) of the Government of Madhya Pradesh and the Secretary (Finance), Government of Madhya Pradesh. The show cause notice issued, in paragraph 2, also concedes that the appellant has furnished the aforementioned letter of MPMKVVCL dated 10.01.2013 and the excise duty exemption certificate along with the copies of the invoices, purchase orders and ER1 returns. 19. The fact that the appellant had not produced the said certificate at the time of clearance of goods has weighed with the learned appellate authority and he has expressed his disagreement with the appellant's contention that it is a procedural lapse while rejecting the claim. 20. We find that a constitution bench of the Hon'ble Supreme Court in Commissioner of C.Ex, New Delhi v Hari Chand Shri Gopal, reported in [2010 (260) ELT 3 (SC)] has held as under: - "23. Of course, some of the provisions of an exemption notification may be directory in nature and some are of mandatory in nature. A distincti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal officer is only of a directory nature, and which being a procedural requirement to ensure the genuine nature of the transaction and that the goods are indeed intended for use as claimed, can be fulfilled even post facto. Indisputably the certificate dated 10.01.2013 so produced was contemporaneously in existence at the time of clearance of the goods, the said clearances being made in February 2013 and June 2013. The grievance is only on its subsequent production. We are of the view that the belated production of the certificate is a procedural lapse that is condonable and insufficient to deny the substantial benefit of the notification given these facts that the goods have been consigned clearly indicating the consignee address as MPMKVVCL in the invoices, there is no allegation that the goods have not been received or not put to their intended use, and the said excise duty exemption certificate, complete in all respects, was issued and in existence. We are therefore of the view that the benefit of the said exemption notification is required to be extended to the appellant. 23. Our aforesaid view also stands bolstered by the earlier decisions of this tribunal in Modern Laborat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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