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Maja Personal Care Vs. Commissioner of Central Excise, Chandigarh - (High Court of Himachal Pradesh) (21 Dec 2018)

Assessee seeking benefit of exemption must always prove its admissibility



The facts as revealed from the order passed by the Tribunal, are that with a view to avail exemption from payment of Central Excise under the Notification No. 50/03-CE, : MANU/EXCT/0046/2003 dated 10th June, 2003 as a new Manufacturing Unit set up after 7th January, 2003, the Assessee in its Declaration had mentioned the goods falling under 'Sub-Head 3004', namely, 'beauty or make-up preparations and preparations for the care of skin', which are non-specific. The Adjudicating Authority declined the benefit of exemption under the aforesaid Notification, but on appeal, the Commissioner (Appeals) held that it was a case of eligibility for exemption under the Notification dated 10th June, 2003 of the goods manufactured and removed from the factory. The Commissioner (Appeals), however, declined exemption on 'After-Shave Lotion' which fell under 'Sub-Head 3307'.

Aggrieved by the order of Commissioner (Appeals) granting relief in part, both sides went in appeal before the Tribunal, which vide its order held that, in its Declaration, the Assessee had given description(s) of goods specified under 'Sub-Head 3004' which were to be manufactured by the assessee and thus, the Commissioner (Appeals) rightly allowed the exemption, for those goods were not mentioned in the 'Negative List' of the Notification.

As regard to the appellant's claim to declare that they are also manufacturing exempted goods like 'Creams' under heading 3304.10.00, 'After-Shave Lotion' under Heading 3307.10.90, 'Paste' under heading 3306.10.20, 'Shaving Cream' under Heading 3307.10.10 and 'Kali Mehandi' under Heading 3305.10.90, the Tribunal found as a matter of fact that neither any Declaration was received from the assessee in the Office of Assistant Commissioner, Shimla in respect thereto nor any evidence of receiving such Declaration was produced. The Appellant thereafter filed Review Application. The Tribunal nonetheless was not convinced with the aforesaid factual plea and dismissed the appellant's Review Application. Issue raised in present case is whether the instant appeal raises a substantial question of law for adjudication by this Court.

Whether the Appellant filed the 2nd Declaration on '13th April, 2005' or on '13th May, 2005', is purely a question of fact. An Exemption Notification ought to be construed strictly and the burden of proving its applicability lies on the assessee so as to establish that its case falls within the parameters of the exemption clause. Whosoever therefore seeks the benefit of exemption must always prove its admissibility. The Appellant was obliged to establish that it had actually applied for the benefit of exemption under the Notification dated June, 2003 through 2nd Declaration filed on 13th April, 2005 or that such a Declaration was available in the office of Assistant Commissioner, Central Excise. The appellant has miserably failed to discharge such onus.

Such like disputes are essentially questions of fact and cannot be treated as substantial question of law for the purpose of maintainability of this appeal. It is well settled that "substantial question of law" would mean--of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with---technical, of no substance or consequence, or academic merely. In any view of the matter, whether a party fairly disclosed the facts or suppressed or gave selective information, too are surely questions of fact and per se does not give rise to substantial question of law. The appeal is accordingly dismissed.


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