TaxTMI 
TaxTMI 
2024 (9) TMI 1070
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....r serial No. 26 of the said notification. The department was of the view that the appellant has not fulfilled the condition number 26 of the Notification No. 12/2012-CE dated 17.03.2012, as amended, saying that when condition 26(b) provides that the manufacturer takes credit of the amount equal to the amount of duty paid in excess of that specified under this exemption notification in the Account Current maintained in terms of part-V of Central Excise Manual of supplementary instructions issued by the CBEC and thereafter file claim for refund of the said amount of duty before expiry of six months from the date of duty on the said motor vehicles with the Deputy Commissioner of sales tax or Assistant Commissioner of Central Excise, as the case may be, having jurisdiction along with filing documents namely, the intimation that the amount of the refund of duty claimed has been credited by the manufacturer in his Account Current also stating that amount of credit so taken. A show cause notice dated 28.12.2017 came to be issued on the above premises i.e. for violation of condition No. 26 of Notification No. 12/2012-CE dated 17.03.2012 whereunder the appellant was asked as to why refund c....
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.... that refund is barred by limitation as provided in the notification. The learned advocate has submitted that it is a settled proposition that order passed beyond the allegations made in the show cause notice is bad in law and need to be set-aside. The learned advocate has relied upon the following decisions in support of his contention:- (a) CCL. Products India Limited reported in 2014-TIOL-2069-HC-MAD-CUS (b) SACI Allied Products Limited reported in 2005-TIOL-73-SC-CX-LB (c) Sanghvi Reconditioners Private Limited reported in 2010-TIOL-10-SC-CUS 3.2 As regards the conditions mentioned at serial 26 of the Notification No. 12/2012-CE dated 17.03.2012, learned advocate mentioned that the appellant have fulfilled the following conditions:- (a) The Appellants have paid full excise duty and infrastructure cess on the motor vehicles at the time of clearance from the factory. (b) The Appellants have availed credit of 20% of the excise duty and infrastructure cess paid on the motor vehicles in their Account Current after registration of the motor vehicles for use as 'Taxis' (albeit after filing of the refund claim). (c) The Appellant....
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.... than three wheeled motor vehicles), which after clearance has been registered for use solely as taxi 12% 12% 80% of the excise paid at the time of clearance - 26 26 And the conditions have been provided at serial No. 26 of the same notification which reads as follows:- 26 (a) The manufacturer pays duties of excise at the rate specified under the First Schedule and the Second Schedule read with exemption contained in any notification of the Government of India in the Ministry of Finance (Department of Revenue), at the time of clearance of the vehicle; (b) the manufacturer takes credit of the amount equal to the amount of duty paid in excess of that specified under this exemption, in the Account Current, maintained in terms of Part V of the Excise Manual of Supplementary Instructions issued by the Central Board of Excise and Customs and thereafter files a claim for refund of the said amount of duty before the expiry of six months from the date of payment of duty on the said motor vehicle, with the Deputy Commissione....
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....f excise erroneously refunded. In case, such irregular or excess credit is utilised for payment of duty of excise on clearance of excisable goods, the said goods shall be considered to have been cleared without payment of duty The learned Commissioner (Appeals) in impugned order-in-appeal dated 03.10.2018 has rejected the appeal of the appellant and disallowed the refund of 20% of excise duty which has been claimed by them only on the following grounds:- "5.2 In the instant case on hand, the adjudicating authority has held. That it cannot be verified from the system whether the appellant had taken credit or not in their account current for refund claims in question and on this ground itself, the claims were rejected. Against this the appellant is claiming to have taken the credit in PLA on 22.03.2018 in respect of the clearances effected during December 2016 to june'2017 and claimed to have chartered accountant's certificate as well in support of the same. 5.3 Now, going by the condition no. 26 quoted supra, the claim of the refund had to be filed within 6 months that too after taking credit in PLA. However, in this case it is admitt....
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....the question for consideration was whether the requirement of the declaration under the proviso to Sec. 5(2)(a)(ii) of the Bengal Finance (Sales-tax) Act, 1941, could be established by evidence aliunde. The Court said that the intention of the Legislature was to grant exemption only upon the satisfaction of the substantive condition of the provision and the condition in the proviso was held to be of substance embodying considerations of policy. Shri Narasimhamurthy would say the position in the present case was no different. He says that the notification of 11th August, 1975 was statutory in character and the condition as to 'prior permission' for adjustment stipulated therein must also be held to be statutory. Such a condition must, says Counsel, be equated with the requirement of production of the declaration form in Kedarnath's case and thus understood the same consequences should ensue for the non-compliance. Shri Narasimhamurthy says that there was no way out of this situation and no adjustment was permissible, whatever be the other remedies of the appellant. There is a fallacy in the emphasis of this argument. The consequence which Shri Narasimhamurthy suggests should flow fr....
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....one hand and those which are merely procedural and technical in their nature on the other must be kept clearly distinguished. What we have here is a pure technicality. Clause 3 of the notification leaves no discretion to the Deputy Commissioner to refuse the permission if the conditions are satisfied. The words are that he "will grant". There is no dispute that appellant had satisfied these conditions. Yet the permission was withheld - not for any valid and substantial reason but owing to certain extraneous things concerning some inter-departmental issues. Appellant had nothing to do with those issues. Appellant is now told "we are sorry. We should have given you the permission. But now that the period is over, nothing can be done". The answer to this is in the words of Lord Denning: "Now I know that a public authority cannot be estopped from doing its public duty, but I do think it can be estopped from relying on a technicality and this is a technicality" [See Wells v. Minister of Housing and Local Government: 1967 (1) WLR 1000 at 1007]. Francis Bennion in his "Statutory Interpretation", 1984 edition, says at page 683 : "Unnecessary technicality: Modern Courts se....
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....lled exactly, though at times, some latitude can be shown, if there is a failure to comply with some requirements which are directory in nature, the non-compliance of which would not affect the essence or substance of the notification granting exemption. In Novopan Indian Ltd. (supra), this Court held that a person, invoking an exception or exemption provisions, to relieve him of tax liability must establish clearly that he is covered by the said provisions and, in case of doubt or ambiguity, the benefit of it must go to the State. 8. We find that the copy of the requisite certificate has been supplied by the Ministry directly to the department this fact has not been disputed by the department. Further, it is also not disputed that the invoices were issued according to the project Certificate. Once these conditions are satisfied, merely that the requisite certificate was not furnished by the appellant is merely procedural. Further, the purpose of required undertaking was merely to ensure that the exemption is not being misused. Once the genuineness of the invoices has been verified and found to be justify the quantum of claim of the appellant as verified by the Jurisdictio....