ORDER
V.P. Gulati, Vice President
1. The issue in the appeal relates to denial of the benefit of Notification 148/82. This Notifiation is conditional in nature and one or the conditions envisaged stipulates that the benefit of the Notification will be contingent upon the assessee filing declaration as to the quantum of clearances to be made from or more of the factories of the assessee or manufactured on behalf of the [assessee] is not expected to exceed the maximum of Rs. 25 lakhs.
2. The appellants did not claim the benefit of this Notification when they started making their clearances and subsequently after the clearances had been effected they found that they were elgible to the benefit of the Notification in question based on the aggregate value of the clearances. This benefit was allowed to the appellants by the AC. However, the AC’s order was reversed on appeal by the department by the Collector (Appeals). The ground for denial of the benefit of the Notification is that the appellants did not file a declaration as envisaged in the Notification. The learned CCE(A) has held as under in para 4 of his order:
4. I have carefully considered the facts of this case and the submissions of the learned consultant. So far as the first point in the application is concerned that the respondents did not file a declaration with the Assistant Collector of Central Excise that the aggregate value of clearances of all excisable goods by him or on his behalf for home consumption during the financial year is not likely to exceed Rs. 25 lakhs, I find that this declaration is mandatory where a manufacturer has not cleared any aerated water in the preceding financial, in the present case of the respondents, 1983-84. The respondents admit that the first clearance of aerated water from their factory was with effect from 18-1-1985. Therefore, it is beyond any doubt that during the financial year 1983-84 there was no clearance of aerated water from their factory. That being the case, the exemption contained in the notification shall be applicable if he files a declaration with the Assistant Collector of Central Excise, under para 3 of the notification. Though filing of a declaration some times may be treated as procedural part of a notification, in the present case, it is not a procedural part of the notification, but it is a mandatory part inasmuch as avail of the benefits of the notification, the assessee is required to file a declaration, the exact words in the notification are, “the exemption contained in this notification shall be applicable to such a manufacturer.” Therefore it cannot be held that where no declaration as been filed, the exemption contained in the notification, shall be applicable. For the above reasons, I cannot agree with the learned consultants view that submission of the declaration under para 3 of the notification is merely a procedural part.
3. Shri Mohan, learned Counsel for the appellants has pleaded that the appellants at the begining of the year when they started making clearances estimated that the quantum of aggregate clearances that they would be making would exceed the limit of Rs. 30 lacs and for that reason the appellants would not be entitled to the benefit of the Notification. However, the appellants clearances during the year did not exceed Rs. 15 lacs and therefore, they filed a refund claim for the excess duty paid in terms of the Notification taking into consideration the aggregate value of the clearances. He has pleaded that the declaration was intended to inform the authorities that the assessee would be availing the benefit of the Notification in a particular slab to enable the authorities to verify from time to time whether the appellants clearances had exceeded the prescribed limit. In the present case however, the appellants maintained full record as to the quantum of clearances made and they had also filed the RT 12 returns regularly. The appellants’ unit has been functioning under the Central Excise control and non-filing of the declaration therefore, could not be held against the appellants.
4. The learned DR for the department has pleaded that the Notification extends the benefit to the assessee in the event of a declaration being filed. He has pleaded that this is a requirement for claiming the benefit available under that notification and the Notification has to be interpreted strictly based on the its own wording. In the present case since the appellants have not filed the declaration, they are dis-entitled to the benefit of the Notification.
5. We have considered the pleas made before us. We observe that the Notification extends the benefit based on the quantum of aggregate clearances and duty slabs have been prescribed for the purpose. The appellant’s unit was newly set up. So far as the benefit of the Notification was concerned, for the purpose of availing the benefit, the relevant condition applicable to them is condition No. 3 which is reproduced below
“(iii) the aggregate value of clearances whereof from all such factories taken together had exceeded rupees fifteen lakhs during the preceding financial year”
The appellants did not stake their claim to the benefit of the Notification when they started making the clearances. The reason given is that at the relevant time the appellants felt that their projected clearance may exceed the value limit prescribed in the Notification. However, the clearances made by them were less than the value limit prescribed for the purpose of the Notification and they therefore, filed refund claim for the excess duty paid in the light of the rate applicable in terms of the Notification based on the value of clearances. We observe that while declaration is prescribed to make the authorities aware the quantum of clearances a particular assessee would be making to avail of the benefit of the Notification, it may not always possible for an assessee to plan out the production and clearances, particuarly in beginning of the year and a given assessee may feel that his clearances would be beyond the value limit for the purpose of the benefit of the Notification and he may not proceed to claim the benefit of the Notification. Later, on for some reasons, the clearances may not reach that limit. In such a situation, the question to be determined is whether the assessee can be denied the benefit which has been given to the SSI manufacturers to make them more competitive. An assessee who has not exceeded the value limit may not have claimed the benefit of the Notification in view of what we have observed above. Once the quantum can be certified to be correct on verification, there is no reason why the assessee should be denied the benefit. In the present case, the appellants had paid excess duty as they had felt that the clearances would exceed the value limit and the Revenue had the advantage of having the money thus paid in excess. The appellants clearances were with in the purview of the department as their unit was a duty paying unit and absence of declaration cannot be taken to have prejudiced the interest of the revenue. The department was all along aware of the quantum of clearances made through the RT 12 filed by them. The deficiency of filing of declaration was made up by the filing of the RT 12 returns. We in the circumstances hold that the appellants will be entitled to the benefit as claimed.
