Customs, Excise and Gold Tribunal - Calcutta
Saha Podder Plastic Industries vs Commissioner Of Central Excise, ... on 8 November, 2001
JUDGMENT
Archana Wadhwa
1. The benefit of notfn. No. 9/99-CE dt. 28.2.99 has been denied to the appellant for the period 1.4.99 to 29.8.99 on the ground that a separate declaration intimating the appellants' option to avail the benefit under the said notification was filed by them on 30.8.99.
2. We have heard Shri B. Bhattacharjee, ld. consultant for the appellants and Shri A.K. Mondal, ld. JDR for the Revenue.
3. It is the contention of the appellants that they had disclosed their option for availing the benefit of the said notification in the declaration filed under Rule 173B. As such the same declaration should be taken as sufficient intimation to the Revenue as regards their option to avail the benefit of the said notification.
4. We find that the Tribunal under similar circumstances in the case of Simcon Engineers v. CCE, Calcutta, vide their order No. S-1119/A-1146/KOL/2001 dt. 7.11.2001 has held that intimation under Rule 173B is sufficient to satisfy the condition of the notification. For better appreciation we reproduce para 4 of the said order.:-
4. After hearing both the sides we find that as per Sl. No. 2 of the notification one of the conditions for availing the benefit of the notification is that a declaration is required to be filed by the assessee in writing for availing the exemption benefit. For better appreciation we reproduce the said paragraph of the notification.:-
2. The exemption contained in this notification shall apply only subject to the following conditions, namely-
(i) a manufacturer who intends to avail the exemption under this notification shall exercise his option in writing for availing the exemption under this notification before effecting the first clearances of specified goods and such option shall be effective from the date of exercise of the option which shall not be withdrawn during the remaining part of the financial year.
A reading of the above condition show that the Revenue is required to be put on notice as regards the availment of the said notification. There is no format prescribed for intimating the Revenue about this option and there is no requirement that a separate declaration is required to be filed by the assessee. Filing of a declaration in our views under the provisions of Rule 173B intimating the Revenue about their option to avail the benefit of the notification would suffice the said condition of the notification in question. The hyper-technical view adopted by the authorities below is not in consonance with the principles of justice especially in the absence of any provision in the said condition for filing of a separate declaration in a specified proforma. Accordingly we are of the view that the orders passed by the authorities below are unsustainable. The same are accordingly set aside and appeal allowed with consequential relief to the appellants.
5. Inasmuch as the issue is already decided in favour of the appellants, we aside the impugned order and allow the appeal. Stay petition also gets disposed of.
Pronounced in the court.