TaxTMI 
TaxTMI 
2016 (4) TMI 17
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.... 3. E/70215,70216,70217/2013 C.C.E & S.T, Dibrugarh Bokel Tea Estate. OIA No. 44/DIB/CE(A)GHY/2012Dt.24.12.2012 4. E/70216/2013 C. C.EX & S. Tax, Dibrugarh M/s. Hattiali Tea Estate, -do- 5. E/70217/2013 C. C. EX, & S. Tax, Dibrugarh M/s. Muttuck Tea Estate, -do- 2. Issue involved in all these appeals is whether M/s Vernerpur Tea Estate, M/s Tyroon Tea Estate, M/s. Bokel Tea Estate, M/s. Hattiali Tea Estate and M/s. Muttuck Tea Estate will be eligible to the benefit of refund scheme under Notification No. 33/99-CE dated-8/7/1999 under clause 3 (b) of the exemption notification for belatedly filing substantial expansion applications and refunds. 3. Ms.Chandreyi Alam (Advocate) appearing on behalf of the appellant M/s. Vernerpur Tea Estate argued that her client submitted refund claim under Notification No.33/99-CE dated 08.07.1999 based on the evaluation report of the Consulting Engineer, along with the relevant records in support of the substantial expansion of 60% in the installed capacity undertaken by the appellant in the year 1999. That on 16.2.06 Range Superintendent visited the factory of the appellant and found that....
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....he Order-in-Appeal dated 09.10.2007 to argue that first appellate authority has relied upon the case law of Punjab & Haryana High Court in the case of Neeldhara Weaving Factory vs. DGFT [2007 (210) ELT 657 (P & H)] wherein it was held that where no time limit is prescribed then also the right has to be exercised within a reasonable time. 5. Shri A.K.Raha (Spl.Counsel) appeared on behalf of Revenue in appeal Nos.EA-70214/2013, E/70215 to 70217/2013 filed by the Revenue. It was his case that in all these cases exemption for the period 1999 to 2003 was claimed much later which is not reasonable as per the conditions specified in Notification No.33/99-CE dated 08.07.1999 as amended from time to time. That as per clause 3(b) of Notification No.33/99-CE appellant should have filed eligibility application immediately on completion of 25% enhancement in the installed capacity and also was required to file statement by the 7th of the next month. That these requirements are made as procedures under Notification No.33/99-CE and has to be strictly followed as held by Apex Court in a series of judgements. That jurisdictional Assistant Commissioner/Deputy Commissioner did not get the opportun....
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....td. Vs. CCE, Guntur [1999 (106) ELT 12 (SC)] (d) CCE, Nagpur Vs. Ballarpur Industries Ltd. [ 2007 (215) ELT 489 (SC)] (v) That the only allegation in the show cause notice is that the refund claim is filed after 7 years which is not reasonable. (vi) That Notification No. 33/99-CE does not prescribe a formal application of refund and that monthly RT-12 is filed by the Respondent may be considered as the required statement to sanction refunds as held in the following case laws: (a) CCE Dibrugarh Vs. Mapuk Tea Estate [2007 (219) ELT 178 (Tri-Kol)] (b) Dhunseri Tea Estate Vs. CCE-Dibrugarh [2011 (274) ELT 590 (Tri-Kol)] (c) CCE, Shillong Vs. Vinay Cement Ltd. [2002 (147) ELT 724 (Tri-Kol)] (vii) That once the Respondent is eligible to the exemption then liberal interprotection should be given to the procedures, if any, not followed by virtue of case law CCE Surat I Vs. Favourite Industries [2012 (278) ELT 145 (S.C.)] (viii) That amendments carried out after 2003 cannot be made applicable retrospectively for the period before 2003 as argued by the Learned Special Couns....
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....s. For this argument case laws of CCE Vs. Vinay Cements Ltd. (Supra), CCE Vs. Nirmala Tea Estate (supra), Dhunser Tea Estate Vs. CCE, Dibrugarh (supra) have been relied upon. It is observed from the facts of the relied upon case law( para-2) CCE, Shillong Vs. Vinay Cement Ltd. (supra), that all other conditions regarding eligibility of that Respondent, to claim refund under Notification No. 33/99-CE, were fulfilled. It is not coming out anywhere in facts of that relied upon case law whether substantial expansion was claimed and refund claims were also filed after a period of 5-6 years of such expansion carried out. It is also not coming out from this case law whether appellant claimed the benefit of Notification No. 33/99-CE in the RT-12 returns. In the case of Dhunseri Tea Estate Vs. CCE, Dibrugarh (supra) there is a specific mention by CESTAT, Kolkata, in para 8 of the order No. A-229/Kol/2011 dated 27/07/2011, that appellant had filed RT-12 returns with the lower authorities wherein there was a claim for the benefit of Notification No. 33/99-CE. It was in these circumstances that this bench held that filing of a separate statements under clause 2 (a) of Notification No. 33/99-CE....
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....f of the Revenue were making a futile attempt by relying upon the case laws Union of India Vs. Uttam Steel Ltd. [2015 (319) ELT 598 (S.C.)] and State of Punjab Vs. Bhatinda District Co.-op. Milk P. Union Ltd. (supra) that for any refund under the Central Excise Law the time limit prescribed under Section 11B of the Central Excise Act, 1944 would be applicable which is contrary to the CBEC clarification dated-6/10/1999. Secondly, whenever time limit of Section 11B is made applicable in an exemption Notification the same is so mentioned in such notification. 8.3 The next moot point for consideration would be whether there is no time limit for filing a refund claim under Notification No. 33/99-CE and whether such refund claims should be given suo-moto by the department even if not claimed by a statement. In the present appeals only eligibility of more than 25% exemption as per clause 3 (b) has not been challenged by the Adjudicating authority and Revenue also did not file any appeal against the orders of the Adjudicating authority. However, we are of the considered opinion that eligibility under clause 3 (b) of Notification No. 33/99-CE does not mean that refund claim/statements ca....
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....The provisions of Section 11B of the Central Excise Act, 1944 are not applicable to the refunds arising out of exemption Notification No. 33/99-CE because specific monthly time limits have been prescribed under this notification. Accordingly, on cumulative reading of various provisions of Notification No. 33/99-CE, we are of the considered opinion that refund claims, filed after more than 5 to 6 years of such duty payment, are clearly time barred. 9. It has also been argued by the Revenue that in view of the Apex Court's decision in the case of Meridian Industries Ltd. Vs. CCE [2015 (325) ELT 65 (S.C.)] a strict interpretation of an exemption notification should be made and in case of any confusion, the benefit of doubt should be given to the Revenue. Respondents/assesses on the other hand, have relied upon the Apex Court's case law CCE, Surat Vs. Favourite Industries [ 2012 (278) ELT 145 (SC)] to argue that a beneficial legislation has to be liberally interpreted in favour of the assesses. Para 31 of this case law decided by Apex Court is as follows: "31. Moreover, a liberal construction requires to be given to a beneficial notification. This Court in Commissione....
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.... case laws relied upon by the Respondents/assesses are, therefore, of no help to them. 9.2 Further Honble Apex Court in the case of Star Industries Vs. C.C. (Imports) Raigad (supra) held as follows in para 31:- "31.We, thus, are of the opinion that in the impugned judgment, the Tribunal has rightly arrived at the conclusion that by virtue of Note 4, concentrate has to be necessarily treated as different from ores which is deemed as manufactured product after Molybdenum Ores underwent the process of roasting. Once we keep in mind that conversion of ores into concentrate is considered as manufacture and, therefore, becomes liable for central excise levy, exemption Notification No. 4/2006-C.E. is to be interpreted in this light as the Legislature has intended to treat ores and concentrates as two distinct items and Notification No. 4/2006-C.E. exempts only ores, concentrates automatically falls outside the purview of said notification. It is rightly argued by the learned senior counsel for the Revenue that exemption notifications are to be construed strictly and even if there is some doubt, benefit thereof shall not enure to the assesse but would be given to the Revenue. T....