TaxTMI 
TaxTMI 
TaxTMI 
2018 (8) TMI 1395
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....ari Ferro Alloys Pvt. Ltd. v. Commr. of Central Excise, Shillong"- 2016 (337) ELT 113 (Tri-Kolkatta) wherein, it was observed that delay beyond the statutory limit prescribed in the said Notification is not condonable. Following the same order the appeal has been dismissed vide order dated 22.03.2017, which is now impugned in this appeal filed under Section 35G of the Central Excise Act, 1944 read with Rule 29 of the CESTAT Procedure Rules, 1992. Background of the case: 3. The appellant is a registered company under the Indian Companies Act, 1956, 'having its registered office at 13th Mile, Tamulkuchi, Byrnihat, Ri-Bhoi District, Meghalaya', is engaged in manufacture of Ferro Silicon, falling under Chapter 72 of the First Schedule to the Central Excise Tariff Act, 1985. 4. The company is also registered with the department of Central Excise under Registration Number-AADCP2939HXM001, has been availing the benefit of exemption of central excise duty, in terms of the North East Area Based Exemption Notification No.32/99-Central Excise dated 08.07.1999 as amended by the Notification No.17/2008-Central Excise dated 27.03.2008 and Notification No.31/2008-Central Excise d....
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....edule of the Act of 1985. 10. The appellant has submitted an application for "Special Rate" for the financial year 2009-2010 on 23.09.2009 received by the Commissioner on 30.09.2009. The supporting documents i.e. balance sheet, value addition certificate by the statutory auditor (Charted Accountant) was submitted on 13.01.2010. The Commissioner of Central Excise, Shillong rejected the application on the ground of having been preferred after the outer limit i.e. 30.09.2009. The rejection order has been maintained by the First Appellate Authority (CESTAT). 11. The appellant had sent letter (application) dated 23.09.2009 to the Commissioner of Central Excise, Old Peak Complex, MG Road, Shillong mentioning therein that the appellant is the manufacturer of goods of the description falling within 72 Chapter of the First Schedule. The rates of value addition for goods falling under the said Chapter of the Act of 1985 have been prescribed in the Notifications i.e. excise duty refund scheme under the Notification No.32/1999-CE dated 08.07.1999, Notification No.17/2008-CE dated 27.03.2008 and Notification No.31/2008-CE dated 10.06.2008. Furthermore, praying therein that the actual value ad....
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....ddition in respect of any goods manufactured and cleared under this notification, if the manufacturer finds that the actual value addition in the production or manufacture of the said goods is at least 115 per cent of the rate specified in the said Table and for the said purpose, the manufacturer may make an application in writing to the Commissioner of Central Excise or the Commissioner of Customs and Central Excise, as the case may be, not later than the 30th day of September in a financial year for determination of such special rate, stating all relevant facts including the proportion in which the material or components are used in the production or manufacture of goods: Provided that the Commissioner of Central Excise or the Commissioner of Customs and Central Excise, as the case may be, may, if he is satisfied that the manufacturer was prevented by sufficient cause from making the application within the aforesaid time, allow such manufacturer to make the application within a further period of thirty days: Provided further that the manufacturer supports his claim for a special rate with a certificate from his statutory Auditor containing a calculation of value addition in the....
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....consequence which Shri Narasimhamurthy suggests should flow from the non-compliance would, indeed, be the result if the condition was a substantive one and one fundamental to the policy underlying the exemption. Its stringency and mandatory nature must be justified by the purpose intended to be served. The mere fact that it is statutory does not matter one way or the other. There are conditions and conditions. Some may be substantive, mandatory and based on considerations of policy and some others may merely belong to the area of procedure. It will be erroneous to attach equal importance to the non-observance of all conditions irrespective of the purposes they were intended to serve. ............." (emphasis added) 17. Para 24 of the judgment rendered in the case of "Commissioner of C.EX., New Delhi v. Hari Chand Shri Gopal" reported in 2010 (260) E.L.T. 3 (S.C.) is also advantageous to be quoted as under:- "24. The doctrine of substantial compliance is a judicial invention, equitable in nature, designed to avoid hardship in cases where a party does all that can reasonably expected of it, but failed or faulted in some minor or inconsequent aspects which cannot be described....
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....requirements is a precondition to give effect to that doctrine. On the other hand, if the requirements are procedural or directory in that they are not of the "essence" of the thing to be done but are given with a view to the orderly conduct of business, they may be fulfilled by substantial, if not strict compliance. In other words, a mere attempted compliance may not be sufficient, but actual compliance of those factors which are considered as essential." (emphasis added) 18. The appellant has made it clear that he has submitted his application on 23.09.2009 which was received by the respondent-Commissioner of Central Excise on 30.09.2009. However, supporting documents could not be submitted in view of non-availability of the auditor due to his sickness. In absence of supporting documents, the application of the appellant was filed within time. Filing of supporting documents is simply a procedure therefore late filing of documents, will not destroy the right of the appellant. The contention appears to be plausible, firstly the substantive requirement is to submit the application up to 30th September which the appellant has done. Non-filing of the supporting documents wit....