Commissioner of Central Excise, Vs. North Eastern Tobacco Co. Ltd. - Court Judgment

Excerpt:
1. in this appeal filed by the revenue the matter relates to the applicability of the exemption notification no. 32/99-ce dated 8.7.99 (as amended) to the cigarette factory of the respondents m/s north eastern tobacco co. ltd. (netco) at amingaon in the export promotion industrial park (epip) of assam. the exemption notification no.32/99-ce aforesaid was available to the excisable goods subject to the conditions as provided in that notification. the assistant commissioner of central excise, guwahati in two separate adjudication orders held that netco were covered by the conditions subject to which the exemption under notification no. 32/99-ce was available and in terms of the conditions of that notification he sanctioned a refund of rs. 72,60,000/- under order-in-original dated 17.1.2000 and a refund of rs. 1,95,36,000/- under order-in-original dated 11.2.2000. the department filed review appeals against both these orders passed by the assistant commissioner of central excise, before the commissioner (appeals), c.excise, guwahati who under her order-in-appeal dated 18.5.2001 confirmed the view taken by the assistant commissioner of central excise, the adjudicating authority and dismissed the review appeals of the department.in the present appeal the revenue had pleaded that the impugned order-in-appeal passed by the commissioner of central excise (appeals) be set aside and the orders-in-original passed by the assistant commissioner of central excise be restored. the prayer for restoring the order-in-original passed by the assistant commissioner is obviously a mistake as both the order-in-original passed by the assistant commissioner is obviously a mistake as both the order-in-original passed by the assistant commissioner of central excise were in favour of m/s. netco and the department had filed review appeals against those orders-in-original before the commissioner of c. excise (appeals).2. the main ground urged by the revenue in the present appeal is that no new industrial unit according to the law had been set up by netco at amingaon and the industrial unit had been set up in violation of the provisions of section 11 of the industrial (development & regulation) act, 1951. m/s. netco had not obtained any licence for their factory at amingaon from the industries department.shri n.c. roy chowdhury, senior advocate appearing for the revenue on 24.9.2001 when the matter came up for hearing submitted that m/s.netco. had transferred their machinery from their already existing guwahati factory and it could not be said that the unit at amingaon was a new industrial unit. no manufacturing licence had been obtained from the industries department for locating their unit at amingaon.according to the learned senior advocate the whole exercise was to evade payment of central excise duty. for availing the benefit of notification no. 32/99-ce investment for organising the production facilities should be new and in the present case the old machines came from guwahati where already the respondents were having a factory. what was really done by the respondents was to shift their factory from guwahati to amingaon, and the learned senior advocate submitted that the benefit of notification no. 32/99-ce was not available in such a situation.shri s.k. bagaria, learned advocate appearing for m/s. netco referred to the provisions of the exemption notification no. 32/99-ce and submitted that all the requirements of the notification had been fully met by the respondents and that there was no conditions in that notification; that for eligibility to the benefit thereunder any licence was required by the industries department. the industries department had raised no objection to the manufacturing activity of the assessee and that the case of the revenue is based on wrong application of law. the respondents had satisfied the locational criteria as provided in the notification no. 32/99-ce. the new unit was established in amingaon and no machines from their old unit at guwahati was transferred to the new premises. he referred to para 11 of the subsequent show-cause notice dated 11.1.2001 at page a-101 of the paper book where the facts regarding machines employed at amingaon had been summerised. no proceedings had been initiated by the ministry of industries and the necessary endorsement with regard to the new location had been given on the existing licence by the industries department. the learned advocate also submitted that the notification has to be interpreted on the basis of its plain language. in support of his various contentions the learned advocate relied upon the various decisions of the tribunal, high courts and the supreme court.we have carefully considered the matter. m/s. netco were engaged in the manufacture of cigarettes. for their factory at amingaon in assam they obtained central excise registration under rule 174 of the central excise rules, 1944 (hereinafter referred to as the rules), from the jurisdictional central excise authorities on 25.11.99. their central excise registration certificate was bearing no. 5/060308/chapter 24/amg/99 and was dated 25.11.99. this was issued in pursuance of their application in form r-1 filed on 1.11.99. earlier m/s. netco had obtained provisional registration certificate on 29.10.99 from directorate of industries, government of assam. their provisional registration certificate was bearing no. 020518582 and was dated 29.10.99. it was issued to them in pursuance of their application no.25025 dated 25.9.99. their commercial production started from 15.12.99 and the benefit of exemption notification was extended to them.notification no. 32/99-ce dated 8.7.99 (as amended), is extracted below: exemption from excise duty and additional excise duty to goods cleared from a unit located in the growth centre on integrated infrastructure development centre or export promotion industrial park of industrial estates or industrial area or commercial estates. in exercise of the powers conferred by sub-section (1) of section 5a of the central excise act, 1944 (1 of 1944), read with sub-section (3) of the additional duties of excise (goods of special importance) act, 1957 (58 of 1957) and sub-section (3) of section 3 of the additional duties of excise (textiles and textile articles) act, 1978 (40 of 1978), the central government, being satisfied that it is necessary in the public interest so to do, hereby exempts the goods specified in the first schedule and the second schedule to the central excise tariff act, 1985 (5 of 1986) and cleared from a unit located in the growth centre or integrated infrastructure development centre or export promotion industrial park or industrial estates or industrial area or commercial estate, as the case may be, specified in annexure appended to this notification, from so much of the duty of excise or additional duty of excise, as the case may be, leviable thereon under any of the said acts as is equivalent to the amount of duty paid by the manufacturer of goods from the account current maintained under rule 9 read with rule 173g of the central excise rules, 1944. 2. the exemption contained in this notification shall be given effect to in the following manner, namely:- (a) the manufacturer shall submit a statement of the duty paid from the said account current to the assistant commissioner of central excise or deputy commissioner of central excise, as the case may be, by the 7th of the next month in which the duty has been paid from the account current. (b) the assistant commissioner or deputy commissioner of central excise, as the case may be, after such verification, as may be deemed necessary, shall refund the amount of duty paid from the account current during the month under consideration to the manufacturer by the 15th of the next month. (c) if there is likely to be any delay in the verification, the assistant commissioner or deputy commissioner of central excise, as the case may be, shall refund the amount on provisional basis by the 15th of the next month to the month under consideration, and thereafter may adjust the amount of refund by such amount as may be necessary in the subsequent refunds admissible to the manufacturer. 3. the exemption contained in this notification shall apply only to the following kind of units namely:- (a) new industrial units which have commenced their commercial production on or after the 24th day of december, 1997. (b) industrial units existing before the 24th day of december, 1997 but which have undertaken substantial expansion by way of increase in installed capacity by not less than twenty five per cent on or after the 24th day of december, 1997. 4. the exemption contained in this notification shall apply to any of the said units for a period not exceeding ten years from the date of publication of this notification in the official gazette or from the date of commencement of commercial production whichever is later.4. under this notification all excisable goods cleared from a new industrial unit or an existing industrial unit with given substantial expansion located in any of the specified areas of assam, tripura and meghalaya were provided exemption from duty equivalent to the amount of duty paid by the manufacturer of such goods, from the account current maintained by such manufacturer under rule 9 read with rule 173 g of the rules. in other words at the time of clearance appropriate duty was required to be paid by the manufacturer through the account current maintained by him. thereafter the duty so paid was to be refunded to such manufacturer. the commercial production in the amingaon unit of the respondents had started on 15.12.99. prior to that on 25.11.99, 27.11.99 and 30.11.99 the assessee had informed the jurisdictional central excise authorities that they were going to avail of the benefit of notification no. 32/99-ce. central excise duty was paid as stipulated in the aforesaid notification and thereafter the statements of the duty paid from their account current were submitted to the jurisdictional assistant commissioner as provided in para 2 of the said exemption notification. the assistant commissioner after verification refunded the amount of duty paid from account current. he observed that m/s. netco were a new industrial unit and were eligible for exemption from excise duty by way of refund w.e.f. 15.12.99. for the period from 15.12.99 to 30.12.99 the refund of rs. 72,60,000/- was sanctioned and for the period from 17.1.2000 to 31.1.2000 a further refund of rs. 1,95,36,000/- was sanctioned vide orders dated 17.1.2000 and 11.2.2000 respectively. the benefit of this notification was not available to the cigarettes from 31.12.99 to 16.1.2000. the appellate authority after examining the facts of the case and taking into account the legal provisions held that m/s. netco was a new industrial unit and that all the conditions of the exemption had been fulfilled by them. 1. that commissioner (appeals), central excise, guwahati in an identical issue in the matter of m/s. netco allowed the appeal vide order-in-appeal no. 247/ce/ghy/2000 dated 19.12.2000 against which an appeal has been preferred by the revenue before the hob'ble tribunal, the same was registered as appeal no. er-19-20/2001 and lying pending before cegat, erb, kolkata. 2. a prima facie case of irregular availment of the benefits of exemption under notification no. 32/99-ce dated 8.7.99 has been booked by the officers of dgcel, east zonal unit, kolkata against m/s. netco, amingaon, guwahati. 3. that the submissions made herein above fully justifies admittance of the appeal by the tribunal for setting aside the impugned order of commissioner (appeals), central excise, guwahati and restoring the order-in-original passed by the assistant commissioner, central excise jorhat and for passing such an order as may deem fit." as regards the first ground of appeal filed by the revenue against the earlier order-in-appeal dated 19.12.2000 of the commissioner of central excise (appeals), the matter related to the entitlement of m/s. netco to the benefit of notification no. 32/99-ce. the commissioner (appeals) had held that m/s. netco were eligible for the benefit of the aforesaid notification. in the meanwhile the jurisdictional assistant commissioner, central excise had sanctioned the refund to m/s. netco vide two separate orders-in-original which are the subject matter of the present appeal filed by the revenue after those two orders were confirmed by the commissioner of central excise (appeals). when the earlier order-in-appeal dated 19.12.2000 came up before the tribunal in the revenue's appeal bearing no. er-19-20/2001, the tribunal vide final order no. a-429-430 dated 22.6.2001 rejected the appeals filed by the revenue and upheld the order dated 19.12.2000 passed by the commissioner of central excise (appeals). as already noted above when the tribunal had passed the above orders dated 22.6.2001, the position with regard to two orders-in-original which are the subject matter of the present proceedings had not been placed before the bench. the commissioner (appeals) in the present impugned order-in-appeal had taken a view that benefit of notification no. 32/99-ce had to be determined on the basis of the express language of the notification itself and no exterior grounds could be given to deny the exemption if available on the basis of the plain and simple language of the notification. we do not find any fault with this approach of the commissioner of central excise.as regards the second ground the present orders-in-original were passed on 17.1.2000 and 11.2.2001. the show-cause notice referred to in the second ground of appeal is dated 11.1.2001 and had been issued by the additional director general of central excise intelligence, east zonal unit, kolkata. in this detailed and elaborate show-cause notice the policy and philosophy behind the scheme for the development of north eastern region of the country had been referred to. in the show-cause notice a reference has also been made to the notification no. 33/99-ce dated 8.7.99 under which exemption was available to the goods specified in the schedule appended to the said notification when the units producing such specified goods were located in the states of assam, tripura, meghalaya and arunachal pradesh. while in terms of the goods exempted the scope of the notification no. 33/99-ce was restricted, in terms of the location it was extensive. this notification no. 33/99-ce is not the subject matter of present proceedings. in the show-cause notice dated 11.1.2001 it had been observed that the scope of these two notification nos. 32/99-ce and 33/99-ce was required to be understood in the context of the various incentive schemes announced by the government of india and formulated by the ministry of industry. on the basis of investigations by the officers of the directorate general, anti-evasion which were summerised in para 9 of that show-cause notice and it had alleged that m/s. netco unit at epip, amingaon may not be treated as a new industrial unit. their production activities were not backed by any valid industrial licence. their old activity was unauthorisedly shifted to amingaon with a view to avail of the benefit of exemption without being eligible for the same. it was also alleged that the licence/registration/approval etc. were obtained by misrepresenting the facts. the bona fide of m/s. netco as independent unit had been questioned on various grounds. the central excise duty in the show-cause notice had been demanded for the period from 15.12.99 to 14.9.2000. the period involved in the present proceedings is from 22.12.99 to 31.12.99 and 17.1.99 to 31.1.2000. thus the period is overlaping.this show-cause notice is not before us and any observations in this regard may not be appropriate. the present dispute has to be settled on the basis of the facts and circumstances as brought on record in these proceedings. we, therefore, refrain from making any observations with regard to show-cause notice dated 11.1.2001 issued by the additional director general of the directorate central excise intelligence.as regards the third and last ground of appeal it has been prayed as under: "3. that the submissions made herein above fully justifies admittance of the appeal by the tribunal for setting aside the impugned order of commissioner (appeals), central excise, guwahati and restoring the order-in-original passed by the assistant commissioner, central excise, jorhat and for passing such an order as may deem fit." the prayer with regard to restoring of the orders-in-original passed by the assistant commissioner is obviously a mistake. the notification no.32/99-ce had already been extracted above. in this notification there is no reference to any scheme announced by the ministry of industry. no role has been specified in this notification for the department of industry. it is a self-contained notification under which the exemption from payment of central excise is subject to the conditions provided therein. whether industrial unit was a new unit or was not a new unit is to be determined on the basis of the provisions of the notification itself. viewed in terms of the express language of the exemption notification, the logic put forward by the revenue in the grounds of appeal does not appear to be appropriate. on the basis of the evidence brought on record it appears difficult to deny the status of a new unit to the netco unit at amingaon.6. the respondents have relied upon a number of decisions in support of their various contentions. in support of their plea that the various expressions used in notification no. 32/99-ce can not be understood in terms of the definitions given in the various circulars of the m/o.industry, reference has been made to the following decisions: b) 1987 (32) elt 759 (c.c.e. v. essen synthetics private limited (cegat).it has also been pleaded that when there is no mention of any licensing provisions under the industrial (development and regulations) act, 1951 in the impugned notification no such condition could be read while applying the said central excise notification to the case of the respondents. reference has been made to the following decisions:(gujarat state fertilizer company v. c.c.e. (supreme court). b) 1978 (2) elt page j-350 (hemraj gordhandas v. acce (supreme court)(bombay oil industries limited v. c.c.e. (supreme court).7. taking all the relevant facts and circumstances into consideration and the case law cited by both the sides, we do not find any merit in the present appeal filed by the revenue and we reject the same. we order accordingly.

Judgment:
1. In this appeal filed by the Revenue the matter relates to the applicability of the exemption Notification No. 32/99-CE dated 8.7.99 (as amended) to the Cigarette factory of the respondents M/s North Eastern Tobacco Co. Ltd. (NETCO) at Amingaon in the Export Promotion Industrial Park (EPIP) of Assam. The Exemption Notification No.32/99-CE aforesaid was available to the excisable goods subject to the conditions as provided in that Notification. The Assistant Commissioner of Central Excise, Guwahati in two separate adjudication orders held that NETCO were covered by the conditions subject to which the exemption under Notification No. 32/99-CE was available and in terms of the conditions of that Notification he sanctioned a refund of Rs. 72,60,000/- under Order-in-Original dated 17.1.2000 and a refund of Rs. 1,95,36,000/- under Order-in-Original dated 11.2.2000. The Department filed Review Appeals against both these Orders passed by the Assistant Commissioner of Central Excise, before the Commissioner (Appeals), C.Excise, Guwahati who under her Order-in-Appeal dated 18.5.2001 confirmed the view taken by the Assistant Commissioner of Central Excise, the Adjudicating Authority and dismissed the Review Appeals of the Department.

In the present appeal the Revenue had pleaded that the impugned order-in-appeal passed by the Commissioner of Central Excise (Appeals) be set aside and the orders-in-Original passed by the Assistant Commissioner of Central Excise be restored. The prayer for restoring the order-in-Original passed by the Assistant Commissioner is obviously a mistake as both the Order-in-Original passed by the Assistant Commissioner is obviously a mistake as both the Order-in-Original passed by the Assistant Commissioner of Central Excise were in favour of M/s. NETCO and the Department had filed Review Appeals against those Orders-in-Original before the Commissioner of C. Excise (Appeals).

2. The main ground urged by the Revenue in the present appeal is that no new industrial unit according to the law had been set up by NETCO at Amingaon and the industrial unit had been set up in violation of the provisions of Section 11 of the Industrial (Development & Regulation) Act, 1951. M/s. NETCO had not obtained any licence for their factory at Amingaon from the Industries Department.

Shri N.C. Roy Chowdhury, Senior Advocate appearing for the Revenue on 24.9.2001 when the matter came up for hearing submitted that M/s.

NETCO. had transferred their machinery from their already existing Guwahati factory and it could not be said that the unit at Amingaon was a new industrial unit. No manufacturing licence had been obtained from the Industries Department for locating their unit at Amingaon.

According to the learned Senior Advocate the whole exercise was to evade payment of central excise duty. For availing the benefit of Notification No. 32/99-CE investment for organising the production facilities should be new and in the present case the old machines came from Guwahati where already the respondents were having a factory. What was really done by the respondents was to shift their factory from Guwahati to Amingaon, and the learned Senior Advocate submitted that the benefit of Notification No. 32/99-CE was not available in such a situation.

Shri S.K. Bagaria, learned Advocate appearing for M/s. NETCO referred to the provisions of the exemption Notification No. 32/99-CE and submitted that all the requirements of the Notification had been fully met by the respondents and that there was no conditions in that Notification; that for eligibility to the benefit thereunder any licence was required by the industries department. The industries department had raised no objection to the manufacturing activity of the assessee and that the case of the Revenue is based on wrong application of law. The respondents had satisfied the locational criteria as provided in the Notification No. 32/99-CE. The new unit was established in Amingaon and no machines from their old unit at Guwahati was transferred to the new premises. He referred to para 11 of the subsequent Show-cause Notice dated 11.1.2001 at page A-101 of the paper book where the facts regarding machines employed at Amingaon had been summerised. No proceedings had been initiated by the Ministry of Industries and the necessary endorsement with regard to the new location had been given on the existing licence by the Industries Department. The learned Advocate also submitted that the Notification has to be interpreted on the basis of its plain language. In support of his various contentions the learned Advocate relied upon the various decisions of the Tribunal, High Courts and the Supreme Court.

We have carefully considered the matter. M/s. NETCO were engaged in the manufacture of cigarettes. For their factory at Amingaon in Assam they obtained central excise registration under Rule 174 of the Central Excise Rules, 1944 (hereinafter referred to as the Rules), from the jurisdictional Central Excise Authorities on 25.11.99. Their Central excise registration certificate was bearing No. 5/060308/Chapter 24/AMG/99 and was dated 25.11.99. This was issued in pursuance of their application in Form R-1 filed on 1.11.99. Earlier M/s. NETCO had obtained provisional registration certificate on 29.10.99 from Directorate of Industries, Government of Assam. Their provisional registration certificate was bearing No. 020518582 and was dated 29.10.99. It was issued to them in pursuance of their application No.25025 dated 25.9.99. Their commercial production started from 15.12.99 and the benefit of exemption Notification was extended to them.

Notification No. 32/99-CE dated 8.7.99 (as amended), is extracted below: Exemption from excise duty and additional excise duty to goods cleared from a unit located in the Growth Centre on Integrated Infrastructure Development Centre or Export Promotion Industrial Park of Industrial Estates or Industrial Area or Commercial Estates.

In exercise of the powers conferred by Sub-section (1) of Section 5A of the Central Excise Act, 1944 (1 of 1944), read with Sub-section (3) of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) and Sub-section (3) of Section 3 of the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the goods specified in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) and cleared from a unit located in the Growth Centre or Integrated Infrastructure Development Centre or Export Promotion Industrial Park or Industrial Estates or Industrial Area or Commercial Estate, as the case may be, specified in Annexure appended to this notification, from so much of the duty of excise or additional duty of excise, as the case may be, leviable thereon under any of the said Acts as is equivalent to the amount of duty paid by the manufacturer of goods from the account current maintained under Rule 9 read with Rule 173G of the Central Excise Rules, 1944.

2. The exemption contained in this notification shall be given effect to in the following manner, namely:- (a) The manufacturer shall submit a statement of the duty paid from the said account current to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, as the case may be, by the 7th of the next month in which the duty has been paid from the account current.

(b) The Assistant Commissioner or Deputy Commissioner of Central Excise, as the case may be, after such verification, as may be deemed necessary, shall refund the amount of duty paid from the account current during the month under consideration to the manufacturer by the 15th of the next month.

(c) If there is likely to be any delay in the verification, the Assistant Commissioner or Deputy Commissioner of Central Excise, as the case may be, shall refund the amount on provisional basis by the 15th of the next month to the month under consideration, and thereafter may adjust the amount of refund by such amount as may be necessary in the subsequent refunds admissible to the manufacturer.

3. The exemption contained in this notification shall apply only to the following kind of units namely:- (a) New industrial units which have commenced their commercial production on or after the 24th day of December, 1997.

(b) Industrial units existing before the 24th day of December, 1997 but which have undertaken substantial expansion by way of increase in installed capacity by not less than twenty five per cent on or after the 24th day of December, 1997.

4. The exemption contained in this notification shall apply to any of the said units for a period not exceeding ten years from the date of publication of this notification in the Official Gazette or from the date of commencement of commercial production whichever is later.

4. Under this Notification all excisable goods cleared from a new industrial unit or an existing industrial unit with given substantial expansion located in any of the specified areas of Assam, Tripura and Meghalaya were provided exemption from duty equivalent to the amount of duty paid by the manufacturer of such goods, from the account current maintained by such manufacturer under Rule 9 read with Rule 173 G of the Rules. In other words at the time of clearance appropriate duty was required to be paid by the manufacturer through the account current maintained by him. Thereafter the duty so paid was to be refunded to such manufacturer. The commercial production in the Amingaon unit of the respondents had started on 15.12.99. Prior to that on 25.11.99, 27.11.99 and 30.11.99 the assessee had informed the jurisdictional Central Excise Authorities that they were going to avail of the benefit of Notification No. 32/99-CE. Central Excise duty was paid as stipulated in the aforesaid Notification and thereafter the statements of the duty paid from their account current were submitted to the jurisdictional Assistant Commissioner as provided in para 2 of the said exemption Notification. The Assistant Commissioner after verification refunded the amount of duty paid from account current. He observed that M/s. NETCO were a new industrial unit and were eligible for exemption from excise duty by way of refund w.e.f. 15.12.99. For the period from 15.12.99 to 30.12.99 the refund of Rs. 72,60,000/- was sanctioned and for the period from 17.1.2000 to 31.1.2000 a further refund of Rs. 1,95,36,000/- was sanctioned vide orders dated 17.1.2000 and 11.2.2000 respectively. The benefit of this Notification was not available to the cigarettes from 31.12.99 to 16.1.2000. The appellate authority after examining the facts of the case and taking into account the legal provisions held that M/s. NETCO was a new industrial unit and that all the conditions of the exemption had been fulfilled by them.

1. That Commissioner (Appeals), Central Excise, Guwahati in an identical issue in the matter of M/s. NETCO allowed the appeal vide Order-in-Appeal No. 247/CE/GHY/2000 dated 19.12.2000 against which an appeal has been preferred by the Revenue before the Hob'ble Tribunal, the same was registered as Appeal No. ER-19-20/2001 and lying pending before CEGAT, ERB, Kolkata.

2. A prima facie case of irregular availment of the benefits of exemption under Notification No. 32/99-CE dated 8.7.99 has been booked by the officers of DGCEL, East Zonal Unit, Kolkata against M/s. NETCO, Amingaon, Guwahati.

3. That the submissions made herein above fully justifies admittance of the appeal by the Tribunal for setting aside the impugned order of Commissioner (Appeals), Central Excise, Guwahati and restoring the Order-in-Original passed by the Assistant Commissioner, Central Excise Jorhat and for passing such an order as may deem fit." As regards the first ground of appeal filed by the Revenue against the earlier Order-in-Appeal dated 19.12.2000 of the Commissioner of Central Excise (Appeals), the matter related to the entitlement of M/s. NETCO to the benefit of Notification No. 32/99-CE. The Commissioner (Appeals) had held that M/s. NETCO were eligible for the benefit of the aforesaid Notification. In the meanwhile the jurisdictional Assistant Commissioner, Central Excise had sanctioned the refund to M/s. NETCO vide two separate orders-in-original which are the subject matter of the present appeal filed by the Revenue after those two orders were confirmed by the Commissioner of Central Excise (Appeals). When the earlier Order-in-Appeal dated 19.12.2000 came up before the Tribunal in the Revenue's appeal bearing No. ER-19-20/2001, the Tribunal vide Final Order No. A-429-430 dated 22.6.2001 rejected the appeals filed by the Revenue and upheld the order dated 19.12.2000 passed by the Commissioner of Central Excise (Appeals). As already noted above when the Tribunal had passed the above orders dated 22.6.2001, the position with regard to two orders-in-original which are the subject matter of the present proceedings had not been placed before the Bench. The Commissioner (Appeals) in the present impugned order-in-appeal had taken a view that benefit of Notification No. 32/99-CE had to be determined on the basis of the express language of the Notification itself and no exterior grounds could be given to deny the exemption if available on the basis of the plain and simple language of the Notification. We do not find any fault with this approach of the Commissioner of Central Excise.

As regards the second ground the present orders-in-original were passed on 17.1.2000 and 11.2.2001. The Show-cause Notice referred to in the second ground of appeal is dated 11.1.2001 and had been issued by the Additional Director General of Central Excise Intelligence, East Zonal Unit, Kolkata. In this detailed and elaborate Show-cause Notice the policy and philosophy behind the scheme for the development of North Eastern Region of the country had been referred to. In the Show-cause notice a reference has also been made to the Notification No. 33/99-CE dated 8.7.99 under which exemption was available to the goods specified in the schedule appended to the said Notification when the units producing such specified goods were located in the States of Assam, Tripura, Meghalaya and Arunachal Pradesh. While in terms of the goods exempted the scope of the Notification No. 33/99-CE was restricted, in terms of the location it was extensive. This Notification No. 33/99-CE is not the subject matter of present proceedings. In the Show-cause Notice dated 11.1.2001 it had been observed that the scope of these two Notification Nos. 32/99-CE and 33/99-CE was required to be understood in the context of the various incentive schemes announced by the Government of India and formulated by the Ministry of Industry. On the basis of investigations by the officers of the Directorate General, Anti-Evasion which were summerised in para 9 of that Show-cause Notice and it had alleged that M/s. NETCO unit at EPIP, Amingaon may not be treated as a new industrial unit. Their production activities were not backed by any valid industrial licence. Their old activity was unauthorisedly shifted to Amingaon with a view to avail of the benefit of exemption without being eligible for the same. It was also alleged that the licence/registration/approval etc. were obtained by misrepresenting the facts. The bona fide of M/s. NETCO as independent unit had been questioned on various grounds. The Central excise duty in the Show-cause Notice had been demanded for the period from 15.12.99 to 14.9.2000. The period involved in the present proceedings is from 22.12.99 to 31.12.99 and 17.1.99 to 31.1.2000. Thus the period is overlaping.

This Show-cause Notice is not before us and any observations in this regard may not be appropriate. The present dispute has to be settled on the basis of the facts and circumstances as brought on record in these proceedings. We, therefore, refrain from making any observations with regard to Show-cause Notice dated 11.1.2001 issued by the Additional Director General of the Directorate Central Excise Intelligence.

As regards the third and last ground of appeal it has been prayed as under: "3. That the submissions made herein above fully justifies admittance of the appeal by the Tribunal for setting aside the impugned order of Commissioner (Appeals), Central Excise, Guwahati and restoring the Order-in-Original passed by the Assistant Commissioner, Central Excise, Jorhat and for passing such an order as may deem fit." The prayer with regard to restoring of the orders-in-Original passed by the Assistant Commissioner is obviously a mistake. The Notification No.32/99-CE had already been extracted above. In this Notification there is no reference to any scheme announced by the Ministry of Industry. No role has been specified in this Notification for the Department of Industry. It is a self-contained Notification under which the exemption from payment of Central excise is subject to the conditions provided therein. Whether industrial unit was a new unit or was not a new unit is to be determined on the basis of the provisions of the Notification itself. Viewed in terms of the express language of the exemption Notification, the logic put forward by the Revenue in the grounds of appeal does not appear to be appropriate. On the basis of the evidence brought on record it appears difficult to deny the status of a new unit to the NETCO unit at Amingaon.

6. The respondents have relied upon a number of decisions in support of their various contentions. In support of their plea that the various expressions used in Notification No. 32/99-CE can not be understood in terms of the definitions given in the various circulars of the M/o.

Industry, reference has been made to the following decisions: b) 1987 (32) ELT 759 (C.C.E. v. Essen Synthetics Private Limited (CEGAT).

It has also been pleaded that when there is no mention of any licensing provisions under the Industrial (Development and Regulations) Act, 1951 in the impugned Notification no such condition could be read while applying the said Central Excise Notification to the case of the respondents. Reference has been made to the following decisions:(Gujarat State Fertilizer Company v. C.C.E. (Supreme Court).

b) 1978 (2) ELT Page J-350 (Hemraj Gordhandas v. ACCE (Supreme Court)(Bombay Oil Industries Limited v. C.C.E. (Supreme Court).

7. Taking all the relevant facts and circumstances into consideration and the case law cited by both the sides, we do not find any merit in the present appeal filed by the Revenue and we reject the same. We order accordingly.