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CUSTOMS, EXCISE AND GOLD (CONTROL) APPELLATE TRIBUNAL, CALCUTTA
smt. Archna wadhwa, S.S. Sekhon, JJ.
Simcon Engineers -Appellant
Versus
Commissioner of Central Excise, Calcutta-III -Respondent
Final Order No. A-1146/Kol/2001 Stay Order No. S-1119 Stay Petition No. SP-739/2001 Appeal No. ER-569/2001, 1146 of 2001, 1119 of 2001, 739 of 2001, 569 of 2001
Decided On : 07-11-2001
Per Archana Wadhwa :
After dispensing with the condition of predeposit of duty amount and penalty, we take up the appeal itself with the consent of both the sides as the issue lies in a narrow compass.
2. The benefit of Notfn. No. 9/99-CE dt. 28.2.99 has been disallowed to the appellants for the period 1.4.99 to 30.6.99 on the ground that no separate declaration intimating the Revenue about the appellants' option to avail the benefit of the said notification was filed with the Revenue. The appellants' contention duly represented by Shri Biswajit Mukherjee, ld. adv. is that they had filed a declaration under the provisions of Rule 173B on 6.4.99 and has claimed the benefit of the said notification. The first clearance was made by them on 7.4.99 i.e. after filing the said declaration under Rule 173B. The Revenue's objection that a separate declaration should have been filed under Notfn. No. 9/99 is not justified inasmuch as the object behind filing of declaration is to put the Revenue to notice about the assessee's option to avail the benefit of the said notification. In any case submits the ld. adv. that a separate declaration was also filed on 1.4.99, which was received by the authorities on 1.7.99 on account of postal delays.
3. Shri Bhowmik opposes the prayer by submitting that as per the provisions of the notification in question, filing of a separate declaration intimating the Revenue about the assessees' option for availing the benefit of the said notification is a mandatory requirement and non-filing of the same result in denial of the benefit of the notification.
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 assessees. 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.
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