Customs, Excise and Gold Tribunal - Delhi
Shri Umed Cement Udyog And Gandhar ... vs C.C.E. on 22 November, 2000
Equivalent citations: 2001(73)ECC571
ORDER S.S. Kang, Member (J)
1. Both the appeals are filed against the common Order-in-Appeal, hence, are being taken up together.
2. Vide impugned order, the Commissioner (Appeals) held that the appellants are entitled for the benefit of Notification 38/97 CE dated 27.6.97 during the period from Jan. 98 to June 98 as they had not fulfilled the mandatory conditions of the notification.
3. Ld. Counsel, appearing on behalf of the appellants, submits that the appellants filed a classification list claiming the benefit of notification. The classification list was filed on 8.1.98. He submits that, thereafter, vide letter dated 9.1.98, the appellants had also filed declaration as required under the notification. He submits that substantive conditions of the notification are complied with, therefore, the appellants are entitled for the benefit of the notification. He relies upon the decision of the Tribunal in the cases of -- (1) Benaras Udvog Pvt. Ltd. v. C.C.E. ; (2) Foam Tek Systems v. C.C.E. ; and (3) Jupiter Engineering Works v. C.C.E. Mumbai reported in 2000 (90) ECR 297 and submits that in these cases, the Tribunal held that non-filing of declaration cannot be made basis for denial of benefit of notification. The submission of the counsel is that substantive benefit provided under the notification cannot be denied on the ground of procedural irregularity.
4. Ld. S.D.R., appearing on behalf of the revenue/submits that Notification No. 38/97 provides certain conditions which are mandatory and the appellants had not complied with those conditions, therefore, they are not entitled for the benefit of notification. She relies upon the decision of the Gujarat High Court in the case of Indian Farmers Fertilizers Co-operative Ltd. v. Union of India reported in 1995 (75) E.LT. 218 (Guj.). She, therefore, prays that the appeal be dismissed.
5. Heard both sides.
6. In this case, the appellants were claiming the benefit of Notification No. 38/97 CE. In the notification it is specifically mentioned that the exemption contained in this notification shall apply only subject to the following conditions, namely:
(i) A manufacturer intending to avail the exemption under this notification in a financial year shall exercise his option in writing for availing the exemption under this notification and such option shall be effective from date of exercise of the option and cannot be changed during the financial year under any circumstances;
(ii) While exercising the option, the manufacturer shall inform in writing to the Assistant Commissioner of Central Excise, with a copy of the Superintendent of Central Excise, giving the following particulars, namely:
(a) name and address of the manufacturer;
(b) location/location of factory/factories;
(c) description of specified goods produced;
(d) date from which option under this notification has been exercised;
(e) aggregate value of clearances of specified goods (excluding the value of clearances referred to in para 3 of this notification) till the date of exercising the option.
7. It is admitted by the appellants that in the classification list, filed by them on 8.1.98, the appellants had only mentioned the number of notification but they had not furnished information as required in the notification. The Supdt. (CE), in response to their classification list vide letter dated 13.7.98, informed the appellants that as per the conditions of Notification No. 38/97-CE, they are required to file necessary declaration. In response to this letter, the appellants, vide letter dated 19.8.98, filed the necessary declaration as required under the notification. It is an admitted position that during the period in dispute, no declaration, as required under the notification, was filed by the appellants. One of the conditions of the notification, is that a manufacturer intending to avail the exemption under the notification shall exercise his option in writing for availing the exemption and such option shall be effective from the date of exercise of option and while exercising the option, the manufacturer has to give information such as, name and address of the manufacturer, location of the factory and date from which option under the notification has been exercised and aggregate value of clearances of specified goods till the date of exercising the option. The Hon'ble High Court of Gujarat in the case of Indian Farmers Fertilizers Cooperative Ltd. (supra) held that when a concession or benefit or an exemption is granted on fulfilment of certain conditions and such conditions are fulfilled by the party to whom such benefit or concession or exemption is given, such person cannot be denied such benefit. If such person does not fulfil any of the conditions, he cannot claim grant of concession as a matter of right on fulfilment of some out of several conditions prescribed therein. During the period in dispute, the appellants had not complied with the conditions laid down in the notification, which are not procedural in nature. Therefore, the appellants are not entitled for the benefit of notification during the period in dispute. The appeals are rejected.