TaxTMI 
TaxTMI 
2017 (9) TMI 1114
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....ribunal, presumably has been served as it has not been returned. In the absence of the Ld. Counsel for the respondent assessee, we heard Shri K. Chowdhury, Ld. Counsel for the Department (Appellant) and from the record it appears that identical issue has come in the case of Vernerpur Tea Estate Vs. Commr. of Central Excise & Service Tax, Shillong reported in 2016 (336) E.L.T. 549 (Tri-Kolkata) where it was observed that : "8. Heard both sides to each appeal and perused the case records. The issue involved in the present proceedings is whether refund claims filed by the respondents/assessees, after a period of more than 5 years from the date of payment of duty, are admissible or not. It is the case of the Revenue that no refund claim has ....
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.... of a separate statements under clause 2(a) of Notification No. 33/99-C.E. should be considered a procedural requirement only. Further, this Bench in view of the relied upon case laws of the assessees has never held that no clause of Notification No. 33/99-C.E. need be followed. 8.1 The provisions contained in clauses 2 and 3 of Notification No. 33/99-C.E. are relevant and are reproduced below. "2. The exemption contained in this notification shall be given effect to in the following manner, namely :- (a) The manufacturer shall submit a statement of the duty paid from the said account current to the Assistant Commissioner or the Deputy Commissioner of Central Excise, as the case may be by the 7th of the next month in which the duty....
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....1B of the Central Excise Act, 1944 are not applicable to refunds under Notification No. 33/99-C.E., dated 8-7-1999. Therefore, both the special counsels appearing on behalf of the Revenue were making a futile attempt by relying upon the case laws Union of India v. Uttam Steel Ltd. [2015 (319) E.L.T. 598 (S.C.)] and State of Punjab v. 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 C.B.E. & C. 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 ....
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....ow such refund provisionally under Clause 2(C) proviso of exemption notification if verification of the statement is likely to be delayed. It is observed that in the present proceedings RT-12 returns filed by the respondents/assessees were not having any claim under Notification No. 33/99-C.E. as was the fact in the case of Dhunseri Tea Estate v. CCE, Dibrugarh (supra). In view of the above observations RT-12 returns of the respondents/assessees cannot be considered as appropriate statements under Clause 2(a) of the Notification No. 33/99-C.E. It is not the case of the respondents/assessees that their substantial expansion application was pending with the department and their refund claims filed were delayed due to non-approval of expansion....
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....n, the benefit of doubt should be given to the Revenue. Respondents/assessees on the other hand, have relied upon the Apex Court s case law CCE, Surat v. Favourite Industries [2012 (278) E.L.T. 145 (S.C.)] to argue that a beneficial legislation has to be liberally interpreted in favour of the assessees. 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 Commissioner of Customs (Preventive), Mumbai v. M. Ambalal and Company, (2011) 2 SCC 74 = 2010 (260) E.L.T. 487 (S.C), (in which one of us was the party) has observed that the beneficial notification providing the levy of duty at a concessional rate should be given a liberal i....
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....Notification No. 33/99-Cus. is a mandatory condition that an assessee should claim the refund of duty by 7th of the next month. This condition cannot be interpreted liberally as laid down by the Apex Court. However, accepting RT-12 return in place of specific statement could be a liberal interpretation provided such RT-12 return also specifies refund amount under Notification No. 33/99-C.E. Revenue cannot be expected to grant suo motu refund under Notification No. 33/99-C.E. when no such claim is made by 7th of the next month either in the specific statement under the exemption notification or RT-12 return filed. The case laws relied upon by the respondents/assessees are, therefore, of no help to them. 9.2 Further Hon'ble Apex Court in t....