ORDER
P.C. Jain, Member (T)
1. The issue involved in both these appeals is common one and therefore, a common order is being passed.
2. Short question involved in both these appeals is whether the appellants are disentitled to the benefit of Notification No. 80/80 dated 19-6-1980 by way of a refund of duty already paid on clearances during the period 23-8-1980 to 27-2-1981, in the absence of any declaration referred to in para 3 of the said notification.
3. By virtue of para 3 of said notification, a manufacturer who had not cleared any specified goods (aerated water in the present case) in the preceding financial year was entitled to the full exemption from payment of duty on the first clearances upto 7.5 lakhs during the financial year 1980-81, if he gave a declaration that (i) he is not likely to exceed the total clearances of Rs. 15 lakhs worth of specified goods during the financial year 1980-81 and that he did not actually exceed the said limit during 1980-81. It is not disputed that the appellants herein did not actually exceed the clearances of Rs. 15 lakhs of specified goods in the said financial year. Lower appellate authority’s sole ground in denying the appellants the benefit of the said notification is that making of a declaration, mentioned supra, is a condition precedent to extending the benefit of the said notification. That declaration having not been made and the clearances on payment of duty having already been effected in terms of the approved classification list the benefit of the notification cannot be extended to the appellants.
4. On the other hand, the appellants contend that the notification nowhere lays down that the declaration must be made before effecting the clearances. In fact, it is urged that the declaration is in two parts which are as follows :
(i) the aggregate clearances of the specified goods for home consumption are not likely to exceed Rs. 15 lakhs during the current financial year; and
(ii) the said clearances do not (actually) exceed the said limit during the financial year.
The learned consultant for the appellants has strenuously urged that the second part of the declaration envisaged in para 3 of the notification implies that the declaration cannot be made effectively before the end of the current financial year. Therefore, the lower appellate authority’s interpretation of the notification is on the face of it untenable. He further urges that the obvious object and purpose of the notification is to extend the benefit of exemption to small producers/manufacturers whose total annual clearances of the specified goods does not exceed Rs.15 lakhs. There is no dispute that the clearances of the appellants during 1980-81 have not exceeded Rs. 15 lakhs. Non-making of the declaration is at the worst a technical ground. A substantive benefit should not be denied for a mere procedural lapse which has occurred due to ignorance of the appellants and lack of guidance from the local Central Excise Officers. He further urged that the benefit of lower rate of duty with effect from 1st April, 1981, by way of a refund was given by the department itself on a subsequent declaration on 30-9-1981 in a revised classification list filed by the appellants.
5. We have carefully considered the pleas advanced on both sides. Approval of a classification list at a higher rate of duty does not estop the appellants in claiming the refund of duty, if they are otherwise eligible for availing the benefit of the said notification. It is apparent that the object of the Notification 80/80 dated 19-6-1980 is to exempt the small producer/manufacturer of specified goods whose annual clearances for home consumption do not exceed the limit of Rs. 15 lakhs. The appellants, admittedly have not exceeded the said limit during the financial year 1980-81. That is the substantive benefit given to both old manufacturers (i.e. those who had made clearance prior to 1st day of August of the preceding financial year) provided they did not exceed the clearance of Rs.15 lakhs of the specified goods in the preceding financial year as well as to new manufacturers (i.e. those who start their production/clearances after 1st August of the preceding financial year or during the current financial year), who do not exceed the clearances of Rs. 15 lakhs in respect of the specified goods. Yardstick of clearances, during the preceding financial year, of specified goods, in respect of the new manufacturers, could not be made applicable for the obvious reason that the data for the previous year is either not available or not adequate enough to determine their character as small producer/manufacturer. Declaration envisaged in para 3, is, therefore, only of a procedural character and cannot be termed as a condition precedent to extending the benefit of the said notification. It is well-settled by now in a series of judgments of the Tribunal that a substantive benefit cannot be denied to an assessee for a procedural lapse.
6. Nor does it act as an estoppel to claim the benefit of a notification by way of a refund of duty, even if the duty was paid under an approved classification list so long as the refund claim is within time. In this case, it has already been found by the lower appellate authority against which there is no appeal by the revenue, that the assessments were provisional and therefore, there is no question of the claim being time-barred.
7. In the result, the appeals are allowed with consequential refund to the appellants.