Customs, Excise and Gold Tribunal - Mumbai
Jupiter Engineering Works vs Commissioner Of Central Excise on 9 September, 1999
Equivalent citations: 2000(67)ECC342
ORDER J. H. Joglekar, Member (T)
1. When this application was heard, it appeared that at this stage itself the main appeal could be taken up for disposal. Both sides agreeing, this was done after granting waiver of pre-deposit of duty amounting to Rs.1,59,920 and penalty of Rs.15,000.
2. We have heard Shri D.D. Gwalani for the appellants and Shri K.L. Ramteke for the Revenue.
3. The assessees desired to avail of the benefit of Notification No. 38/97 dt.27.6.97. The notification requires a specific option to be made for utilisation of this notification and prescribes certain information to be filed with the Jurisdictional Assistant Officer incharge. The assessees say that on 1.4.98, they filed an option which was duly received by the Jurisdictional Assistant Commissioner's office on 1.4.98 itself. Thereafter they availed of the benefit of this notification. In the declaration also they had claimed the benefit of the cited notification. This was duly received under a stamped signature in the Assistant Commissioner's office on 16.6.98. However, on 16.6.98, Show Cause Notice was issued alleging that the assessees had not filed any letter for exercising the option and therefore on this ground, the short levied had occurred during the period April 1998 to June 1998 in their reply dt.13.7.98. The assessees protested and submitted a zerox copy of the letter of option showing the due receipt. The Assistant Commissioner after hearing the assessees confirmed the demand. He examined the letter dt. 1.4.98. He observed that the letter, though stamped did not bear the signature of the receiving officer nor did it bear the serial number or receipt. He observed that subsequent investigation also did not result in locating the letter in either that Divisional Office or in the Range Office. He further observed that the assessees had not produced before him the duplicate copy of the letter which was acknowledged by the Department. On this ground he held that the option was not exercised. The assessees then filed an appeal. The Commissioner (Appeals) upheld lower orders on the observation that the appellant had not shown him the copy of the letter claimed to have been received by the department but had only shown him the zerox copy.
4. We have carefully considered the submissions made.
5. The issue raised is the denial of the receipt of the letter dt. 1.4.98. The zerox copy shows the circle stamp of the Assistant Commissioners office. The Assistant Commissioner in his order held that the receiving officer had not put his signature. This is quite a common occurrence in any Government office. Several banks also receiving cash or cheques put a date stamp without signature of the receiving officer. On this ground assessee cannot be put at a disadvantage. Similarly failure of the Assistant Collector to locate in his records cannot be held against the asssessee. The Assistant Commissioner holds that the reference number is invariably given. We have seen the copy of the classification declaration which was received on 15.4.98 under the signature of an officer, but without any reference of the receipt number. Since this document is not contested we do not hold highly the Assistant Collector's observation.
6. It is curious that at all time the assessee did not produce the duplicate copy on which the stamp was put. But because of that reason, it would not be proper to deny substantive benefit.
7. Although the notifications makes it necessary for the option to be given, all the details required are available on the classification declaration filed by the assessees on 15.4.98. Therefore it can be held that the department had received intimation atleast on 15.4.98. In dealing with cases of the refund claims, the Tribunal have held that where the assessee had given an intimation of their intention to file a refund claim, such intimation should be taken for the reckoning of the period of limitation, even where the formal refund claim is filed later.
8. We thus find that in the present proceedings substantive benefit is sought to be denied on minor procedural lapses alleged on part of the assessees. An order based on such flimsy ground cannot sustain. It is accordingly set aside. The appeal is allowed with consequential relief.