AI Drafter 
TaxTMI 
TaxTMI 
2025 (11) TMI 1336
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....ment; the applicant ordered the supply of vehicles from various manufacturers on behalf of the state government, which on clearance and after payment of Central Excise duty were sent to the fabricator M/s Bafna Healthcare Private Limited at Faridabad (hereinafter referred to as" M/s BHPL"). On an investigation conducted against the fabricator M/s BHPL, Revenue entertained a view that the fabrication of ambulances by M/s BHPL amounted to manufacture; therefore, M/s BHPL were required to pay Central Excise duty of Rs. 1,64,91,905 on 105 ambulances cleared to Government of Karnataka. M/s BHPL paid the duty under protest. 2.1. The appellants filed a claim, dated 19.04.2010, seeking refund of the Central Excise duty paid by M/s BHPL under protest; the claim was rejected by Assistant Commissioner, vide letter dated 29.4.2010 on the ground that the Notification No.6/2006-CE dated 01.03.2006 envisages refund to the manufacturer and the appellant not being the manufacturer was not entitled to the refund claim; on an appeal filed by the appellant, Commissioner (Appeals), vide order dated 19.4.2011, directed the authority to deal with the refund claim on merits as per the existing procedur....
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....10; even though the vehicles are classifiable under CSH 8703 33 92 of CETA 1985, concessional rate of duty is available in terms of in terms of Sl. No. 41A and Sl. No. 34 of Notification.No.6/2006 -CE dated 1.3.2006; as the appellants have paid duty on behalf of the Government of Karnataka, who have also given a No Objection Certificate, they are eligible to claim the refund. 6. The appellants submit further that Learned Commissioner (Appeals) has not appreciated the facts on record, in the light of the Memorandum of understanding between the Government of Karnataka and the appellant; a careful reading of the above, would show that the appellant would act as sole State Level Nodal Agency to provide Emergency Response Services across the State in public, private partnership and in coordination with Public Agency / Government Department; in this background, the Appellants placed the orders for manufacture of 105 vehicles on M/s Force Motors and for fabrication on M/s BHPL; the Ambulances were sent to the Districts, after registering the with the Jurisdictional Regional Transport Officers (RTOs) in the name of the respective District Health & Family Welfare Officers; the ambulances....
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....dustries Pvt Ltd 1997 (94) ELT 449 (SC), HMM Ltd 1996 (87) ELT 593 (SC) and Rupa& Co 2004 (170) ELT 129 (SC). The submit that the Government of Karnataka, vide Letter No. HFW/52/STQ/ 2009 dated 26.12.2009 and 26.12.2010, authorised the appellants to pay the duty and differential duty and to seek refund if any; Chartered Accountant certified the payment of duty by the appellant. Submissions on behalf of the Respondent 9. Learned Authorised Representative reiterates the findings of the impugned order and submits that the Ambulances cleared by the fabricator and handed over to the Government of Karnataka had undergone the process of manufacture and therefore invited the imposition of Central Excise duty at the time of clearance; as the Central Excise duty was paid correctly, there was no excess payment of duty is there for which the instant refund claim has been filed; the appellants were neither a manufacturer nor a buyer of the said vehicles and thus cannot be considered as the buyer for the purpose of Section 11 B(2)(e) of the Central Excise Act, 1944. He submits that the refund claim was rightly rejected on the following grounds: * M/s BHPL paid the duty on confirma....
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....dison & Co. Ltd. 2016 (339) ELT 177 (S.C.) that though a consumer can make an application for refund, verification is to be done as to who bore the burden of excise duty. He submits that in the instant case, the appellants are not even consumers. 11. None for the appellants. Heard the Leaned Authorised Representative for the appellants and perused the records of the case. Under the MOU entered in to by the appellants with the Government of Karnataka, they were required to run the ambulance service named "Arogya Kavacha"; to provide management, research, and technology and the Government of Karnataka was to meet 100% of the operating expenditure with full capital investment. The appellants ordered the supply of vehicles from various manufacturers on behalf of the state government, which on clearance and after payment of Central Excise duty were sent to the fabricator M/s BHPL; on the completion of fabrication the vehicles were fitted with some more equipment and were delivered to the concerned District officers in the ministry of Health and Family Welfare, Government of Karnataka after registering the same in the name of the District officers. Revenue entertained a view that the ....
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....aw recognizes only the manufacturer for the purposes of payment of duty. It also recognizes the Purchaser of the vehicles for the purposes of Refund. The appellant is not established to be either of them. He is not even a consumer. The appellant could not produce any evidence to show that they are the buyers or owners or the consumers of the vehicles who have borne the incidence of duty and have not passed on to others. All that the appellants presented is the correspondence between them, Government of Karnataka and the fabricator. If M/s BHPL had paid the duty, they were eligible to claim refund as per the Central Excise Act and Rules made thereunder and the Notification no 6/2006. We find that condition No.8 of the said Notification prescribes certain conditions as follows. 8. (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....
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....case the credit availed is lesser than the amount of refund determined, the manufacturer shall be eligible to take credit of the balance amount; and The recovery of the credit availed irregularly or availed in excess of the amount of credit so determined, and not reversed by the manufacturer within the period specified under paragraph (c) above, shall be recovered as if it is a recovery of duty of excise erroneously refunded. In case such irregular or excess credit is utilized for payment of excise duty on clearance of excisable goods, the said goods shall be considered to have been cleared without payment of duty to the extent of utilization of such irregular or excess credit. 14. We find that not only the appellant but also M/s BHPL, the manufacturer fabricator of the impugned goods, have not fulfilled any of the conditions and have not followed any procedure laid down as above. Under the Circumstances, it would be impossible for the Revenue authorities to process the Refund claim and grant refund. If the appellant wished to obtain the refund of duty paid in terms of the above notification, it was incumbent upon them to satisfy the authorities that they satisfy the conditions ....
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....rticular procedure, it shall be done in the same manner following the provisions of law, without deviating from the prescribed procedure.... 16. We further find that the Hon'ble supreme Court of India held in the case of State of Jharkhand & others Vs Ambey cements and another (2005) 1 SCC 368 that 24. In our view, an exception or an exempting provision in a taxing statute should be construed strictly and it is not open to the court to ignore the conditions prescribed in the industrial policy and the exemption notifications. 25. In our view, the failure to comply with the requirements renders the writ petition filed by the respondent liable to be dismissed. While mandatory rule must be strictly observed, substantial compliance might suffice in the case of a directory rule. 26. Whenever the statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to severe consequences, such requirement would be mandatory. It is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in....