2023 (7) TMI 359 - AT - Central Excise

Appeal allowed, exemption granted under Notification No.108/95-CE. Commissioner can direct appeal filing.

M/s. Gannon Dunkerly & Co. Ltd. Versus Commissioner of CGST & CX, Bhubaneswar-I Commissionerate

The appeal was allowed, setting aside the impugned order, as the appellant was found entitled to the benefit of exemption under Notification No.108/95-CE ... Exemption on goods to be supplied to a project financed by the said United Nations or the international organization - whether the assessee could have produced certification of exemption after clearance or not? - HELD THAT:- On going through the provisions of section 35E(2) of the Central Excise Act, 1944, it is found that the Commissioner of Central Excise (Appeals) may direct such authority to apply to the Commissioner(Appeals) for determination of such point arising out of a decision or order which means that the Commissioner can direct the adjudicating authority to file appeal before the Ld.Commissioner(Appeals) - Therefore, the provisions of the Central Excise Act are very much clear that the Commissioner of Central Excise can direct the Deputy Commissioner who has adjudicated the matter to file before the Ld.Commissioner(Appeals). Therefore, the Deputy Commissioner has rightly filed the appeal before the Ld.Commissioner(Appelas) in terms of section 35E(2) of the Central Excise Act, 1944. It is a fact on record that Notification No.108/95-CE dated 28.08.1995 allows the benefit of duty free clearance provided that before clearance of the said goods, the manufacturer produce before the Assistant Commissioner of Central Excise having jurisdiction over their factory a certificate from United Nation or an international organization that the said goods are intended for official use by the United Nations or the international organization or are to be supplied to a project financed by the said United Nations or the international organization and the said project has duly been approved by the Government of India - Admittedly in the case in hand, the appellant has 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. In the case of COMMR. OF CUS. (IMPORTS), MUMBAI VERSUS TULLOW INDIA OPERATIONS LTD. [2005 (10) TMI 502 - SUPREME COURT] which the appellant have relied the Hon’ble Apex Court held that eligibility criteria deserves strict construction although construction of the condition thereof may be given a liberal meaning. It was also held that once the assessee satisfies the eligibility clause, the exemption clause therein may be construed liberally. Further, it was held that it is well settled that Legislature always intends to avoid hardship. In a situation of this nature, the exemption notification cannot be construed in a way which would prove to be oppressive in nature. Admittedly in the case in hand the appellant has produced the certificate although late but the said certificate fulfills the criteria of exemption available to the appellant therefore following the decision in the case of Tullow India Operations Ltd., it is held that the appellant is entitled to take benefit of exemption Notification No.108/95-CE dated 28.08.1995. Appeal allowed. Issues involved: - Appeal against denial of benefit under Notification No.108/95-CE dated 28.08.1995. - Maintainability of appeal filed by adjudicating authority under section 35E of the Central Excise Act, 1944. - Entitlement to benefit of exemption under Notification No.108/95-CE dated 28.08.1995 based on production of certificate after clearance of goods.Maintainability of Appeal by Adjudicating Authority: The Commissioner of Central Excise has the authority to direct the Deputy Commissioner to file an appeal before the Commissioner(Appeals) under section 35E(2) of the Central Excise Act, 1944, thus upholding the appeal filed by the adjudicating authority.Entitlement to Exemption based on Certificate Production: The Notification No.108/95-CE dated 28.08.1995 requires a certificate from a specified authority before clearance of goods for duty-free status. In this case, the appellant failed to produce the certificate before clearance. However, relying on the decision in Tullow India Operations Ltd., where post facto production of certificate was deemed acceptable for exemption, the appellant was granted the benefit of the exemption despite producing the certificate after clearance.Conclusion: The appeal was allowed, setting aside the impugned order, as the appellant was found entitled to the benefit of exemption under Notification No.108/95-CE dated 28.08.1995 based on the late but compliant production of the required certificate.