ORDER
V.K. Agrawal
1. These are two appeals preferred by Revenue being aggrieved with the Order-in-appeal No. 247/CE/GHY/2000 dt. 19-12-2000 passed by the Commissioner, Central Excise (Appeals).
2. Shri N.C. Roy Choudhary, Id. Senior Advocate for the Revenue, submitted that the Respondents, M/s North Eastern Tobaco Co. Ltd (NETCO) obtained and industrial licence under the Industrial (Development & Regulation) Act, 1951 in 1975 for setting up a cigarette manufacturing industry; that the industry was set up by the Respondents in 1985 and was closed down in the year 1993-94; that pursuant to Prime Minister’s assurance, the Central Government announced special ‘New Industrial Policy’ for North East whereby various incentives and packages were to be given for investment and setting up ‘New Industrial Units’ and/or undertaking at designated location in North East India; that pursuant to this, an exemption Notification No.32/99 C.E., dt. 8-7-1999 was issued which provides refund of Central Excise duty paid by a manufacturer in respect of excisable goods cleared from a unit loated in the growth centre; that the exemption contained in the Notification is available only to the following kinds of units namely:-
(a) New Industrial units which have commenced their Commercial production on or after 24th day of December,1997.
(b) Industrial units existing before the 24th day of December, 1997 but which have undertaken substantial expansion by not less than twenty five percent on or after the 24th day of December,1977.
3.1 The Id. Senior Advocate, further, submitted that NETCO was granted a provisional registration certificate (PRC) by the DIC & C Kamrup for setting up an unit for the manufacturing cigarettes at Amingaon in December 1999; that as they had not been given a licence under the I(DR) Act, they cannot be called an industrial unit and violation of conditions/provisions of other allied Acts would not entitle them to the exemption. The Id Senior Counsel referred to Section 11 of the I(DR) Act which provides that no person shall establish any new industrial undertaking, except and in accordance with a licence issued in that behalf by the Central Government. He also referred to Section 7 of the I(DR) Act according to which application for a licence or permission for the establishment of a new industrial undertaking shall be made before taking any of the following steps:
(a) raising from the public any part of the capital required for the undertaking or expansion or the production or manufacture of the new article;
(b) Commencing the construction of any part of the factory building for the undertaking or expansion or the production or manufacturing of the new article;
(c) Placing order for any part of the plant and machinery required for the undertaking or expansion or the production or manufacture of the new article.
3.2 He mentioned that the conditions (a) & (b) above are not satisfied by the Respondents since they started business at Amingaon with 100% of paid up share capital prior to 24-12-97 and the plant and machinery which they installed at Amingaon was from their old factory which was set up in 1985. The ld. Senior Counsel further mentioned that ‘New Industrial Unit’ has been defined in the scheme, of which the present exemption notification, is a part, being made in view of the Prime Ministers’s assurance given to the people of the North East; that as per Notification F. No. 6(1) 98-DBA-II dated the 1st June,1998 of the Ministry of Industry (Department of Industrial Policy & Promotion), New Industrial unit means an industrial unit for the setting up of which effective steps were not taken prior to 24th December, 1977; that ‘Effective steps” means one or more of the following steps-
(i) that 10% or more of the capital issued for the industrial unit has been paid up.
(ii) that any part of the factory building has been constructed
(iii) that a firm order has been placed for any plant and machinery required or the industrial unit.
4. The ld. senior Counsel submitted that conditions (i) & (iii) are similar to the conditions (a) and (c) of Section 7 of the I(DR) Act; that it is an accepted principle of law that without satisfying the condition of the exemption Notification a person is not entitled to any benefit of the same. Reliance was placed on the decision in the case of Madras Fertilizers LTD. Vs. Assistant Collector 1994(69) ELT 625 wherein it was held that unless all the condition are satisfied the benefit does not flow. He further mentioned that the burden is on the Respondent to prove and satisfy that they had complied with all the conditions of the Notification Reliance was placed on the decision in the case of Collector of Customs Vs. Presto Industries, 2001 (128) ELT 321 (SC) wherein the Supreme Court held that “The onus of proof of fulfilment of condition subject to which an exemption may be admissible lies on the asessee or upon a party claiming benefit under the Notification”. He emphasised that the Respondents have not taken any licence for the new unit at Amingaon and as such they are not entitled to the exemption; that licence of 1975 cannot cover of satisfy the condition of the exemption notification dt. 8-7-99. He relied upon the decision in the case reported in AIR 1925 P.C. 83 wherein it was held that “No Court can enforce as valid, that which competent enactment have declared shall not be valid, nor is obedience to such an enactment, a thing from which a Court can be dispensed by the consent of the parties or by failure to plead or to argue the point at the outset.”
5. Countering the arguments, Shri R.A. Bajoria, ld. senior Advocate for the Respondent, submitted that due to change in the excise structure in 1987, the working of their factory started in 1985 was adversely affected and they also faced labour problems which resulted in suspension of production in 1990-91; that after the announcement of a special package for the North-Eastern Region aimed at revival of the industrial activities, they decided to revive the Company and a new unit was set up under the same industrial licence at Export Promotion Industrial Park, Amigaon and Production had commenced from 15-12-1999; that they acquired machinery afresh; that Central Excise Department granted them Registration on 25-11-99, that as they had set up a new industrial unit, they applied for refund of duty paid by them in accordance with the procedure prescribed in Notification No. 32/99-CE; that the Assistant Commissioner, after verification and scrutiny of records, granted refund in terms of the said Notification under two Orders dt.17-1-2000 and 10-2-2000. Shri Bajoria, ld. Senior Counsel, further submitted that the new industrial unit at Amingaon was set up by them under the Industrial Licence dt.1-5-1975; that an Industrial undertaking is eligible to run one or more than one units; that in any case unlike other Notifications issued under Section 5A of the Central Excise Act, there is no condition precedent in Notification No. 32/99-CE about the unit being registered/licenced under I(DR) Act; that the validity or otherwise of an industrial licence is not a condition for grant of exemption and, therefore, the refusal to grant the exemption under the Notification on the ground that the same is being reconsidered in view of the letter dt.16-8-2000 of the licensing Authority is not warranted; he also contented that the grant of benefit under a Notification is controlled by the plain wordings of the Notification and it is not permissible to read any extreneous condition thereto. Reliance is placed on the decision in the case of C.C.E., Bombay Vs. Sunway (I) Ltd, 1999(109) ELT 302 (T) wherein it was held that violation of any condition stipulated in one notification should result in “denial of benefit of that Notification and not the denial of “any other Notification unless otherwise provided. He also relied upon the decision in Structurals And Machineries (Bokaro) Pvt. Ltd Vs. C.C.E., Patna,1984 (17) ELT 127 (T) wherein it was held that the concession in Notification is not dependent on taking out a Central Excise Licence and the demand of duty is to be examined on the basis of effective rates of duty provided under the notification, subject to fulfilling the conditions stipulated therein. It was held by the Tribunal in that case that “it would not be proper to deny the appellants the benefit of Notification No.89/79-C.., dt. 1-3-79 on the ground that the appellants had not taken out a licence”. He also referred to the decision in the case of C.C.E. Vs. Atlas Radio & Electronics Pvt. Ltd. 1989(39) ELT 123 (T) wherein it was held that the concessional rate laid down in the exemption Notification was not dependent on the condition that it would be applicable to only those manufacturers who had disclosed their manufacturing activity and would not be applicable to others in whose case the manufacturing activity was detected later by the department.
6. The ld. senior Counsel for the Respondents mentioned that Notification dt. 1st June, 1998 of Department of Industrial Policy And Promotion is regarding the scheme of Central Grant of subsidy for industrial units in the North Eastern Region; that this Notification cannot be read into Notification No. 32/99-CE issued under Section 5A of the Central Excise Act; that the conditions stipulated in the Notification dt. 1-6-1998 cannot be made applicable for availing the benefit of Notification No.32/99-CE in absence of any such mention in Central Excise Notification. He relied upon the decision in Union of India Vs. Kayani Breweries Ltd.,1999 (113) ELT 39 (Cal). The Calcutta High Court held that “The recourse of the definition of a word in another statute which is not pari materia with the concerned statute should not be taken into consideration.” The Court further held that the Words in one Act which was for the purpose of giving effect to the scope and object thereof cannot be applied while construing the same words where the text and context are different. Finally the ld. Senior Counsel mentioned that as held by the Supreme Court in the case of Hemraj Gordhandas Vs. H.H. Dave, Assistant Collector, 1978 (2) ELT J 350 (S.C.), in a taxing statute there is no room for any intendment and submitted that no new condition can be added by or implied in any notification. He also relied upon the decision in Gujarat State Fertilizers Co. Vs. C.C.E., 1997 (91) ELT 3 (SC) wherein it was held by Apex Court that in interpreting a notification, express language of the Notification has to be given its due effect. Reliance is also placed on the decision in the case of Excise Superintendent Vs. Deluxe Bar 2001(43) RLT 131 wherein the Supreme Court held that “In fiscal matters, the provisions are required to be strictly construed and there is no scope for looking to the unexpected intendment.
7. We have considered the submissions of both the sides. The facts which are not in dispute are that the Respondents set up a unit in Amingaon, which is specified as one of the Export Promotion Industrial Park in Notification No. 32/94-CE; the unit Commenced its production of cigarettes after 24-12-1997; Cigarette was one of the excisable goods covered by the Notification during the relevant period. Further the Commissioner (Appeals) has given her findings in the impugned Order that the Respondents were allowed to function under Notification No. 32/99-CE from 15-12-99 by the Assistant Commissioner under Orders dt.17-1-2000 and 10-2-2000 and that there was no review Order/show cause notice or any letter proposing to withdraw facilities under Notification No. 32/99 in which event the Assistant Commissioner ought to have simply followed provisions of the Notification wherein provisional refund on undertaking has been allowed. The Commissioner (Appeals),thereafter, gave her findings that “The Orders issued by the Assistant Commissioner on 17-1-2000 and 10-2-2000 not having been altered in any way he was bound to follow the provisions of Notification 32/99”. We do not find any infirmity in these findings reached by the Commissioner (Appeals) in the impugned Order. We observe that the Assistant Commissioner under Order dt.17-1-2000 has categorically, ordered that “the unit i.e. M/s NETCO Ltd is eligible for exemption from excise duties by way of refund w.e.f. 15 Dec’99 in their case”. The second Order dt./ 10-2-2000 was issued by the Assistant Commissioner of account of amendment of Notification No.32/99 by Notification No. 45/99-CE dt.17-2-2000 (withdrawing the benefit of exemption in respect of cigarettes with effect from 31-12-1999 and by Notification No. 1/2000-CE dt. 17-1-2000 restoring the benefit of exemption again. In view of the specific Orders passed by the Assistant Commissioner, the Commissioner (Appeals) has rightly held that Assistant Commissioner would make refund provisionally and make adjustment of dues. The ld. Senior Counsel, appearing for the Revenue, has mentioned that, by moving miscellaneous Application,they have brought on record two Review Order passed by the Commissioner, Central Excise under Section 35E of the Central Excise Act reviewing both the Orders dt.17-1-2000 and 10-2-2000 passed by the Assistant Commissioner and applications have been filed before the Commissioner (Appeals) for setting aside both the Orders. These subsequent actions will not make the findings of the Commissioner (Appeals) wrong as both the Orders dt.17-1-2000 and 10-20-2000 have not been set aside so far. Accordingly on this count we are of the view that the findings of the Commissioner (Appeals) are to be upheld and Appeals filed by the Revenue are rejected without going into any other aspect. The Misc Application also stands disposed of as main appeals have been rejected
(Pronounced)