TaxTMI 
TaxTMI 
2022 (5) TMI 8
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....ppellant is a manufacturer of Tea including Tea Waste falling under Chapter 9 of the Central Excise Tariff Act, 1985. The appellant submitted its application dated 13.10.2008 seeking exemption from duties of excise in terms of Notification No. 33/99-CE dated 08.07.1999 on the ground that they have increased the overall installed capacity by 53% during the period from 24.12.1997 to 05.07.1999. The assessee also submitted along with its application, the Chartered Engineer's assessment report for installed capacity together with Invoices/Challans in respect of the new machinery installed by them, diagrammatic representation of the machineries before and after expansion etc. The assessee has claimed that after the expansion their installed capacity of the factory had increased by 53% as on 05.07.1999. 3. A show cause notice No. C. No. V(18)24/DCJ/REF/06/6892 dated 18.12.2008 was issued by the Department asking the appellant to show-cause as to why their claims should not be rejected as the same were submitted after about nine (9) years from the date of completion of expansion. The assessee replied to the show-cause notice stating that the limitation under Section 11B of the Central ....
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....were regularly filed within the specified period showing Central Excise duty paid during the period in question. 4. Whether the Assessee can be denied the substantial benefit of refund available as per notification No. 33/99-CE dated 08.07.1999 merely on the grounds of lapse in following procedural requirements? 5. Whether the CESTAT was justified in not following the earlier decisions of the coordinate benches on the same issue wherein the coordinate benches of the Tribunal held in respect of Notification No. 33/99-CE dated 08.07.1999 that no formal application is required to be filed under section 11B of the Central Excise Act, 1944 for claim of refund and refund is to be allowed on the basis of monthly returns filed?" 6. The learned counsel for the appellant submits that the rejection of the refund claims of the appellant on the ground of limitation is wholly unjustified as the Central Board of Excise & Customs vide letter No. 354/8/98-TRU (Part-II) dated 06.10.1999 clarified that the provisions of Section 11B of the Central Excise Act, 1944 are not applicable in case of refunds claimed under Notification No. 33/99-CE dated 08.07.1999. He further relies upon....
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.... of Excise (Goods of Special Importance) Act, 1957 (58 of 1957), and sub-section (3) of section 3 of the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978, (40 of 1.978), of the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the goods specified in the Schedule appended to this notification and clear from a unit located in the state of Assam or Tripura or Meghalaya or Mizoram or Manipur, or Nagaland or Arunachal Pradesh, as the case may be, from so much of the duty of excise leviable thereon under any of the said Acts as is equivalent to the amount of duty paid by the manufacturer of goods from the account current maintained under rule 9 read with rule 173G of the Central Excise Rules, 1944. 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 has been paid from the account current. (b) The Ass....
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....ssioner or Deputy Commissioner of Central Excise as the case may be, by the 7th of next month by the manufacturer. 12. A perusal of the pleadings including the reply dated 08.01.2009 filed by the appellant before the authority concerned does not reveal that such a procedure had been followed by the appellant/assessee as laid down by the Notification No. 33/99-CE dated 08.07.1999. What instead has been urged is that since the provisions of Section 11B of the Central Excise Act, 1944 are not applicable, no limitation is applicable and therefore, the claims made by the appellant cannot be debarred on the ground of limitation. While there is no quarrel with the proposition that in view of the several clarificatory notifications issued by the Custom and Central Excise Board, that limitation provided under Section 11B of the Central Excise Act, 1944 are not applicable, however, unless the Notification No. 33/99-CE dated 08.07.1999 is amended by the Central Government, the procedure prescribed thereunder including the requirement of filing statement of duty paid by the manufacturer by the 7th of next month as prescribed under Notification cannot be waived at the instance of the manufac....
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....ent to the Assistant Commissioner by the 7th of next month in which the duty has been paid from the account current. In the facts of that case since the assessee therein had fulfilled those conditions, this Court upheld the entitlement of the refund claims of the assessee therein and had held that when the twin conditions are satisfied, refund claims cannot be denied on the ground of limitation. 15. However, in the facts of the present case, there are no clear averments made by the appellant that conditions prescribed under Clause 2(A) of the Notification No. 33/99-CE dated 08.07.1999 has been fulfilled by the appellant. Rather entire thrust of the appellant's case is that notwithstanding the delay of about nine (9) years in claiming the refund, since limitation under Section 11B of the Central Excise Act, 1944 is not attracted for claiming benefits under the notification, the appellant is entitled to the refund claims made. Such contention of the appellant is clearly opposed to the law laid down this Court in M/s Jokai Agri Plantations Pvt. Ltd (Supra). 16. It is also pertinent to note that the earlier order of the Tribunal rendered in Vernerpur Tea Estate Vs. Commissioner o....