2024 (11) TMI 545

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....2004 to 31.03.2009) and another Show Cause Notice dated 30.04.2010 (covering the period 04/2009 to 12/2009) was issued demanding a total duty of Rs.1,76,55, 284/-. The appellants submitted that vide their letters dated 12.02.2003 and 25.11.2006 have declared their intention to expand the production capacity and the approval of the competent authority for the same. They submitted that they are entitled to benefit of Notification No.49-50/2003-CE dated 10.06.2003. After analyzing the correspondence and available records, Commissioner vide his Order-in-Original dated 21.09.2010 held that the appellants are entitled for the exemption w.e.f. 12.11.2008 only; accordingly, he confirmed the demand of Rs.74,46,186/- along with interest and equal penalty under Section 11AC. Now, the appellants are before us challenging the denial of exemption from 2003 and Department is in appeal (E/210/2011) against the order extending exemption from 12.11.2008. 2. Shri Pawan K. Pahwa, assisted by Counsels listed in the preamble, learned Counsel for the appellants, submits that the benefit should be available for them as substantial expansion effective from 08.01.2003 and 23.08.2006 is not in dispute; un....

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.... extended from 2003 itself. He relies on the following cases: • Hari Chand Shri Gopal - 2010 (260) ELT 3 (SC). • Sharif-ud-Din Vs Abdul Gani Lone (AIR 19810 S.C. 303). • Malwa Industries Ltd. - (2009) 12 SCC 7353. • Controls and Switchgears Company - 2017-TIOL- 1960-CESTAT-DEL. • Vasantham Enterprises - 2015 (37) STR 1007 (Tri. Del.) upheld by Hon'ble Supreme Court as 2018 (13) GSTL J33 (SC). • Usha Infra Systems - 2019 (369) ELT 1258 (Tri. Chan.) • Indica Industries Pvt. Ltd. - 2017 (257) ELT 961 (Tri. Del.) upheld by Hon'ble Supreme Court - 2018 (360) ELT A124 (SC). • A G V Fenestration Pvt. Ltd. (Excise Appeal No.55106 of 2013) • Forging Machinery Manufacturing Co. - 2018 (364) ELT 208 (Tri.) • Packaging India Pvt. Ltd. - 2013 (294) ELT 246 (Tri. Del.). 5. Learned Counsel submits that declarations dated 12.02.2003 and 25.11.2006 were filed by the appellants and the same are placed on record; the Adjudicating Authority rejected the same on the grounds that copies were not available with the Department; unfortunately, the acknowledgments of the same ....

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....rom DIC, HP is available only w.e.f. 23.8.2006 and no certificate of enhancement prior to 23.8.2006 has been placed on record. 7. Learned Authorized Representative further submits that it is on record that the appellants themselves submitted vide letter dated 11.12.2007, that they are an SSI Unit doing job-work under Notifications No.214/86 dated 25.03.1986; they were availing the benefit of exemption under Notification No.50/2003-CE dated 10.06.2003; the letter dated 12.02.2003, alleged to be a declaration for the purposes of the exemption Notification No.49-50/2003 dated 10.06.2003, is dated before the issuance of the Notification itself; contrary to the claim of the appellants that they have two substantial expansions, there is no substantial expansion prior to 23.08.2006 as approved by District Industry Centre, Solan. Learned Authorized Representative distinguishes the case law relied upon by the appellant and submits that they are not applicable as the issues involved are not comparable. He relies on Amrit Agros Vs CCE - 2007 (210) ELT 183 (SC) and submits that cum-duty benefit cannot be extended unless the manufacturer shows that the price of the goods includes excise duty....

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....wever, the Adjudicating Authority allowed the exemption from 12.11.2008 the date on which the appellants have given declaration. It appears that the main objection of the Revenue regarding the letters dated 12.02.2003 and 25.11.2006 that the reports have not been filed with the Department and as such, in view of the Hon'ble Supreme Court's decision in the case of Dilip Kumar & Co. (supra), the conditions of the Notification have not been satisfied and therefore, benefit cannot be extended. On the other hand, the appellants submit that they have filed the said declarations but they do not have the acknowledgement for the same as one of their employees has criminally destroyed or misplaced them and action has been taken against him. However, the learned Adjudicating Authority has allowed the exemption from 12.11.2008 for the reason that though they claim that declaration has been given on 12.02.2003 and 25.11.2006, there is no record of the same with the Revenue and the appellants could not show any acknowledgement; the appellants themselves, vide letter dated 11.12.2007, indicted that they are under SSI and are not availing the benefit of the Notification No.49-50/2003. 11. On th....

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.... the appellants to avail the Notification cannot be taken away as there is no res judicata in the matters of taxation. Even if the appellants have availed the SSI exemption in 2007, they cannot be precluded to avail another benefit if otherwise eligible. We find that CESTAT has taken this stand that when substantial compliance of the conditions has been established, exemption cannot be denied for reason that a declaration has not been filed. In the instant case, the appellants claim that they have filed declaration dated 25.11.2006 though they could not produce the acknowledgement for the same. This is a mere procedural violation which should not come in the way of allowing the benefit of the exemption Notification. Therefore, in the facts and circumstances of the case, we find that the appellants are eligible for the exemption Notification from 25.11.2006. 14. The appellants argue that extended period cannot be invoked in the instant case as there was no positive act of suppression etc. with intent to evade payment of duty on the part of the appellants. The appellants submit that their unit has been visited by the Preventive and Audit Units of Central Excise and they have been ....