TaxTMI 
TaxTMI 
2001 (6) TMI 545
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.... Respondents, M/s. North Eastern Tobacco Co. Ltd (NETCO) obtained an industrial licence under the Industrial (Development & Regulation) Act, 1951 in 1975 for setting up a cigarette manufacturing industry; that the industry was set up by the Respondents in 1985 and was closed down in the year 1993-94; that pursuant to Prime Minister's assurance; the Central Government announced special 'New Industrial Policy' for North East whereby various incentives and packages were to be given for investment and setting up 'New Industrial Units' and/or undertaking at designated location in North East India; that pursuant to this, an exemption Notification No. 32/99-C.E., dt. 8-7-1999 was issued which provides refund of Central Excise duty paid by a manufa....
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....ion for a licence or permission for the establishment of a new industrial undertaking shall be made before taking any of the following steps : (a) raising from the public any part of the capital required for the undertaking or expansion or the production or manufacture of the new article; (b) Commencing the construction of any part of the factory building for the undertaking or expansion or the production or manufacturing of the new article; (c) Placing order for any part of the plant and machinery required for the undertaking or expansion or the production or manufacture of the new article. 3.2 He mentioned that the conditions (a) & (c) above are not sat....
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....he case of Madras Fertilizers Ltd. v. Assistant Collector - 1994 (69) E.L.T. 625 (S.C.) wherein it was held that unless all the conditions are satisfied the benefit does not flow. He further mentioned that the burden is on the Respondent to prove and satisfy that they had complied with all the conditions of the Notification Reliance was placed on the decision in the case of Collector of Customs v. Presto Industries - 2001 (128) E.L.T. 321 (S.C.) wherein the Supreme Court held that "The onus of proof of fulfilment of condition subject to which an exemption may be admissible lies on the assessee or upon a party claiming benefit under the Notification". He emphasised that the Respondents have not taken any licence for the new unit at Amingaon ....
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...., granted refund in terms of the said Notification under two Orders dated 17-1-2000 and 10-2-2000. Shri Bajoria, ld. senior Counsel, further submitted that the new industrial unit at Amingaon was set up by them under the Industrial Licence dt. 1-5-1975; that an Industrial undertaking is eligible to run one or more than one units; that in any case unlike other Notifications issued under Section 5A of the Central Excise Act, there is no condition precedent in Notification No. 32/99-C.E. about the unit being registered/ licenced under I(DR) Act; that the validity or otherwise of an industrial licence is not a condition for grant of exemption and, therefore, the refusal to grant the exemption under the Notification on the ground that the same i....
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.... applicable to only those manufacturers who had disclosed their manufacturing activity and would not be applicable to others in whose case the manufacturing activity was detected later by the department. 6. The ld. Senior Counsel for the Respondents mentioned that Notification dt. 1st June, 1998 of Department of Industrial Policy And Promotion is regarding the scheme of Central Grant of subsidy for industrial units in the North Eastern Region; that this Notification cannot be read into Notification No. 32/99-C.E. issued under Section 5A of the Central Excise Act; that the conditions stipulated in the Notification dt. 1-6-1998 cannot be made applicable for availing the benefit of Notification No. 32/99-C.E. in absence of any such menti....
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....e Respondents set up a unit in Amingaon, which is specified as one of the Export Promotion Industrial Park in Notification No. 32/94-C.E.; the unit Commenced its production of cigarettes after 24-12-1997; Cigarette was one of the excisable goods covered by the Notification during the relevant period. Further, the Commissioner (Appeals) has given her findings in the impugned order that the Respondents were allowed to function under Notification No. 32/99-C.E. from 15-12-1999 by the Assistant Commissioner under Orders dt. 17-1-2000 and 10-2-2000 and that there was no review order/show cause notice or any letter proposing to withdraw facilities under Notification No. 32/99 in which event the Assistant Commissioner ought to have simply followed....