TaxTMI 
TaxTMI 
2016 (4) TMI 57
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....07.1999, as amended. In claiming the exemption, the above-mentioned Appellants, filed necessary Applications with the Commissioner of Central Excise involving delay from the due date ranging from 82(eighty two) days to 176(one hundred and seventy six) days as recorded in the respective Orders-in-Original, mentioned below:- Sl. No. Appeal No. Name of the Assessee Scheduled date for submission of claim as per Notification Date of receipt of balance sheet and the certificate from the statutory Auditor to Com. Office Total number of days delay Date of commencement of commercial production 1. EA-649/10 M/s. Nalary Ferro Alloys Pvt. Ltd. 30.09.2009 25.03.2010-VA 83.41% 176 days 10.03.2003 2. EA-650/10 M/s. Satyam Alloys 30.09.2009 21.12.2009-VA 94.42% 82 days 22.02.2006 3. EA-651/10 M/s. Jai Kamakhya Alloys Pvt.Ltd. 30.09.2009 05.01.2010-VA 89.82% 97 days 01.06.2007 4. EA-652/10 M/s. Khasi Alloys Pvt.Ltd. 30.09.2009 25.03.2010-VA 90.10% 176 days 05.10.2004 5. EA-653/10 M/s. Bimala Ispat & Alloys Pvt.Ltd. 30.09.2009 05.01.2010-VA 90.12% 97 days 01.08.2002 3. The principal ground on which the Ld. Commissioner rejected their applications se....
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....rt, the ld.AR referred to the judgement of this Tribunal in the cases of Commissioner of C.Ex., New Delhi v. Hari Chand Shri Gopal - 2010 (260) ELT 3(SC), Commissioner of Central Excise, Pondicherry v. Honda Siel Power Products Ltd. - 2015 (323) ELT 644(SC) and M/s.Meridian Industries Ltd. v. Commissioner of Central Excise - 2015 (325) ELT 417(SC). Further, the ld.AR for the Revenue has submitted that the Commissioner is not vested with the power to condone the delay beyond 30(thirty) days as the upper cap for accepting the application has been prescribed under the said Notification. In support, the ld.AR referred to the decision of this Tribunal in the case of Zenith Computers Ltd. vs. UOI - 2004 (164) ELT 24(Bom.). Also drawing analogy, from similar provisions viz. Section 35A of Central Excise Act, 1944, the ld.AR submitted that now it is well-settled principle of law that once the upper statutory time limit for filing Appeal before the Commissioner(Appeals) is 60(sixty) days, as prescribed under Section 35A of Central Excise Act,1944 and on sufficient cause being shown could be condoned by another 30(thirty) days, any further delay beyond that period cannot be condoned by the C....
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....year: Provided also that a manufacturer that commences production on or after the 1st day of April, 2008 may file an application in writing to the Commissioner of Central Excise or Commissioner of Customs and Central Excise, as the case may be, for the fixation of a special rate not later than the 30th day of September of the financial year subsequent to the year in which it commences production." 7. Both sides agree that the appellants were required to file their applications for claiming the benefit of said Notification by 30.09.2009. However, it is pleaded that since Auditors Certificate and balance sheet of the previous year were not ready, there had been delay in filing the application before the Commissioner, claiming special rate, under Notification No.32/99-CE dated 08.07.1999. The moot question, therefore, to be addressed in the present appeals is: whether the Commissioner was right in rejecting the applications filed beyond the allowable limit of 30(thirty) days from the due date of 30.09.2009 or he should have condoned the delay and accepted the applications. 8. Needless to em....
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....ictly and even if there is any doubt same is to be given in favour of the Department. 4. We find that the Tribunal has decided the case in favour of the assessee by observing that clearing of goods with payment of Excise duty with current account was only an error and the assessee had not violated the more substantial condition viz no Cenvat Credit should be taken in regard to the goods. This is clearly a faulty approach on the part of the Tribunal. It is stated at the cost of repetition that the assessee was required to fulfill the condition in stricto senso viz to pay the duty either in cash or through account current if it wanted to avail the benefit of exemption notification and not through adjustment of Cenvat Credit which is not the mode prescribed in the aforesaid conditions. Once we find that the conditions have not been fulfilled the obvious consequence would be that the assessee was not entitled to the benefit of this notification." 10. In the present Notification, inter alia, it is a condition that the assesse is required to file necessary application by 30th of September in the financial year and also under the first proviso to the said Notification, the Commissioner....
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....to condone the delay after the expiry of 30 days period." 12. We also find the principle laid down by the Honble Bombay High Court in the case of Zenith Computers Ltd.(supra) on similar question raised before it is applicable to the facts of the present case. It has been observed by the Honble High Court that an authority created under the statute cannot travel beyond the scope of the power delegated under the statute. Their Lordships held at para 16 & 17 of the judgment as :- "16. It is well settled that the statutory bodies cannot travel beyond the scope of power delegated to them under the statute under which they are created or authorized to act. Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow. (vide : Sharif-ud-Din v. Abdul Gani Lone reported in AIR 1980 SC 303). A requirement of a particular form or manner of performance of an act is to be held as mandatory if the statutory provisions prescribe penalty for the failure t....