AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2022 (9) TMI 486
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....ed 08.07.1999, is barred by the Principle of res judicata, as the same issue allowing the exemption benefit to the Appellant has already been decided by this Hon'ble High Court in the Judgment & Order, dated 26.04.2013 in the Writ Petition No. WP(C) 83/2013? (b) Whether the Ld. Respondent Authorities have committed judicial indiscipline, while continuing revenue litigation, without taking recourse of judicial appeal against the Order of this Hon'ble Court, dated 26.04.2013, if were aggrieved ? (c) Whether the Appellant is entitled to get interest for delayed refund under the exemption scheme in terms of Section11B of the Central Excise Act, 1944, considering 'relevant date' as the date of passing the Order by this Hon'ble High Court dated 26.04.2013? 4. Subsequently, by way of an affidavit the appellant reformulated the questions of law. This Court by order dated 01.02.2021 admitted the appeal and the following question of law:- (I) Whether it is correct view that RT 12 Returns submitted by the Appellant was not to be considered as Statement for refund under Para 2 of the Exemption Notification No.33/99-CE, contrary to the law declared by t....
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....ad increased by 37% on 02.07.1999. Since the claim for refund of Central Excise duty paid was submitted after about 9(nine) years from the date of increased capacity, a show cause notice was issued vide show cause notice No. V (18)23/DC/REF/07-08/3501 dated 29.09.2008 by the jurisdictional Assessing Officer. The appellant replied to the show cause notice by submitting photocopies of the relevant documents and requested for submission of the original at the time of the hearing. At the time of hearing the matter, although two orders of the Commissioner (appeals) were produced, however, the original copies of the relevant document were produced only on 16.12.2009 on the date of personal hearing. However, in spite of repeated requests, the assessee could not produce any documents in support of their claims that they had informed the Range Officer in 2001 about the expansion undertaken by the Assessee. In view of the above, the claim for refund was rejected as being time barred as the same was not filed within a reasonable time. Thereafter, the appellant/assessee filed an appeal before the Commissioner, Customs and Central Excise Appeal, Guwahati. The Appellate Authority answered the....
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....appellant. The Appellate Authority held that the exemption notification provided for separate statements to be filed and not merely RT-12 returns and it was held that the appellant did not fulfill the conditions of the exemptions notification. Further the CESTAT held that there is nothing in the returns to show that they have intended to claim the benefit of exemption under Notification No. 33/99-C.E. or had actually claimed in any of the returns whatsoever. The CESTAT held that this cannot be equated as fulfilling the conditions required under Para- 2 of the exemption notification. Being aggrieved the present appeal under Section 35G of the Central Excise Act has been preferred. 9. The learned counsel for the appellant submits that rejection of the claims for refund by the appellant on the ground of limitation is wholly unjustified inasmuch as the Central Excise Notification No. 33/99-C.E. does not provide for any time limit or time frame within which the refund claims are required to be made. The learned counsel for the appellant referred to the judgments of this Court in WP(C) No. 82/2013 [Mokalbari Konai Tea Estate (P) -Vs- The Union of India and Ors.] rendered by a co-ordin....
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....which is also a judgment of a Co-ordinate Bench and submits that the said judgment while accepting the views expressed in the earlier judgments have rejected the claims of the appellant therein on the ground that there were no materials or evidence produced in support of their claims that the assessee had submitted the relevant documents in terms of the requirement of the exemption Notification No. 33/99-C.E. 14. The learned counsel for the respondents submits no evidence has been brought out by the appellant in support of their claims that the increase in the installed capacity of their factory stated to have been carried out was brought to the notice of the Range Officer although several opportunities were granted by the Adjudicating Officer, the First Appellate Authority as well as the CESTAT. Consequently, no substantial question of law arises in the present proceedings and the present appeal should be dismissed. It is also submitted that the issue raised in the instant proceedings are squarely covered by the Judgment of a Coordinate Bench of this Court in Chamong Tea Company Limited (Duflating Tea Estate). 15. It is the further submission of the learned counsel for the r....
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....Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, after such verification, as may be deemed necessary, shall refund the amount of duty paid from the account current during the month under consideration to the manufacturer by the 15th of the next month. (c) If there is likely to be any delay in the verification, Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, shall refund the amount on provisional basis by the 15th of the next month to the month under consideration and thereafter may adjust the amount of refund by such amount as may be necessary in the subsequent refunds admissible to the manufacturer. 4. The exemption contained in this notification shall apply only to the following kind of units, namely :- (a) New industrial units which have commenced their commercial production on or after the 24th day of December, 1997; (b) Industrial units existing before the 24th day of December, 1997 but which have undertaken substantial expansion by way of increase in installed capacity by undertaken substantial expansion by way of increase in....
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....is notification, "Mineral" does not include crude petroleum oils and the expression "Mineral based" shall be construed accordingly. 17. Floriculture 18. Agro based" 17. A perusal of the Notification No. 33/99-CE dated 08.07.1999 reveals that the procedure for claiming exemptions under the notification is provided for under Clause-2 of the said Notification. Clause 2(a) provides that a statement of duty paid from the account current is to be submitted by the manufacturer (the appellant herein) to the Assistant Commissioner or Deputy Commissioner as the case may be, by the 7th of the next month in which the duty has been paid. Under clause (b) of the said notification, it is provided that the Assistant Commissioner or the Deputy Commissioner of the Central Excise as the case may be, after such verification, as may be deemed necessary shall refund the amount of duty paid from account current during the month under consideration to the manufacturer by the 15th of next month. Under Clause (c) any delay in verification by the Assistant Commissioner or the Deputy Commissioner of Central Excise is likely to arise, the refund amount shall be made on provisional basis by....
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....pellant/assessee satisfied the requirement of filing a statement as per the procedure prescribed under Clause-2(a) of the Notification No. 33/99-CE dated 08.07.1999. There is completely no averment to that effect. Rather categorical statement is made in the show-cause reply that because of different stands taken by the Department at different times the manufacturer/appellant did not submit their claims at the relevant point in time. 20. We find that in the present proceedings also there is a categorical finding by the adjudicating authority which was relied upon by the CESTAT while rejecting the appeal preferred by the appellant/CESTAT. The said findings of the appellant authority are extracted below:- "During the hearing, the appellant did not submit copy of the letter acknowledged by the jurisdictional range. By their letter dated 09.03.2010 they further said that they have actually submitted RT-12 returns to the range office informing about the registration of new machinery. The appellant was repeatedly asked, in vain, to submit the particular copy of RT-12 returns on which they have claimed the exemption Notification and submitted the fact of expansion of their plan....
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.... CIT reported in (1986) 4 SCC 16, the Apex Court held that the Appellate Tribunal is the final fact-finding authority under the Income Tax Act and the High Court has no jurisdiction to go behind the statements of fact made by the Tribunal in its appellate order. The High Court may do so only if there is no evidence to support them or the Appellate Tribunal has misdirected itself in law in arriving at the findings of fact. But even there the High Court cannot disturb the findings of fact given by the Appellate Tribunal unless a challenge is directed specifically by a question framed in a reference against the validity of the impugned findings of fact on the ground that there is no evidence to support them or they are the result of a misdirection in law. Although, the said Judgments were rendered in respect of Income Tax Appeals, the ratio culled out by the Apex Court would also be applicable in an appeal under Section 35G of the CESTAT, as an appeal under Section 35G of the Central Excise Act, is also maintainable only on substantial questions of law. 23. Insofar as the first substantial question of law is concerned, it is held that the requirement under the exemptions notificati....
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....nding upon the settings on which the provision has been placed in the statute and the object and purpose to be achieved. If exemption is available on complying with certain conditions, the conditions have to be complied with. The Apex Court held that the doctrine of substantial compliance seeks to preserve the need to comply strictly with the conditions or requirements that are important to invoke a tax or duty exemption and to forgive non-compliance for either unimportant and tangential requirements or requirements that are so confusingly or incorrectly written that an earnest effort at compliance should be accepted. 24. A mere perusal of the Notification No. 33/99-C.E. dated 08.07.1999 reveals that the conditions prescribed for claiming any exemption are clear and specific and there is no ambiguity. The conditions required to be fulfilled by an assessee who seek to claim the benefit under the said notification will have to satisfy the conditions prescribed. 25. In view of such specific requirements that the assessee must submit the statement of duty paid within the 7th of the next month to the Officers mentioned under the notification, submission of RT-12 returns alone b....
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....r 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 of Central Excise, Shillong and reliance upon which was placed by the Tribunal while passing the order dated 30.08.2017 impugned in the present appeal, has in the meantime being interfered with by the same Co-ordinate Bench of this Court. This Court in Vernerpur Tea Estate reported in 2018 0 Supreme (Gau) 69 also held that no limitation under Section 11B of Central Excise Act, 1944 will be applicable in refund claims under Notification No. 33/99-CE dated 08....
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....re found to have been submitted by the said assessee. However, in the absence of the department asking for further details, the First Appellate Authority held that the assessee was entitled to the refund under Notification No. 33/99- C.E. The said view was upheld by the Co-ordinate Bench and the appeal was allowed directing the implementation of the order of the Appellate Authority within a period of 6(six) weeks from the date of the Judgment and Order. 29. However, as discussed above, the findings of fact in the present proceedings arrived at by the Adjudicating Authority, The First Appellate Authority as well as the Tribunal are to the effect that the specific details sought for in respect of the claims made by the assessee that the expansion of the factory undertaken was informed to the jurisdictional Range Officer and the fulfillment of the conditions prescribed under Clause- 2 of the said notification were not submitted before the Adjudicating Authority or the First Appellate Authority or the Tribunal in spite of several opportunities being granted. As such, the contentions made by the assessee that they fulfill all the criteria prescribed under the Notification No. 33/99-C....