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Judgment
1.Heard Ms. M Hazarika, learned Senior counsel for the petitioner. Also heard Mr. SC Keyal, learned Assistant SGI appearing for the respondents.
The petitioner is a private ltd. company engaged in the business of manufacturing of tea by purchasing the tea leaves from the small tea growers. A
Notification No. 13/2003-CE dated 01.03.2003 as amended by a subsequent Notification No.41/03-CE dated 14.05.2003 was issued by the respondent
authorities. As per the amended Notification of 14.05.2003, in Clause No.2, tea cleared by a factory belonging to a Co-operative Society during any
financial year subsequent to 2002-2003 is entitled to the benefit of exemption from additional excise duty. Similarly Clause No.3 of the Notification
dated 14.03.2003 provides for exemption from additional excise duty in respect of tea bought by a bought leaf factory during any financial year
subsequent to 2002-2003.
It is an admitted position of the parties that the present petitioner comes within the purview of Sl.No.3, inasmuch as, it is a bought leaf factory,
which is not a cooperative Society. In the aforesaid premises, when the appellate order in appeal being Order-in-Appeal No.59/SH/CE(A)/GHY/2015
dated 31.03.2015 as communicated on 28.04.2015 is looked into, it is noticed that Clause 18 of the appellate order provides that the petitioner is found
to be a company incorporated under the Companies Act and has failed to submit the undertaking as per the conditions stated in Clause.2(b)(i) or (ii) of
the Notification dated 14.05.2003.
As already indicated Clause 2 of the Notification pertains to tea being cleared by a factory belonging to a co-operative society whereas Clause 3
relates to tea being cleared by the bought leaf factory which is other than a co-operative society. As the petitioner is admittedly a company and not a
co-operative society, therefore, the applicable clause in respect of the petitioner would be clause 3 of the Notification dated 14.05.2003.
In view of the above, the appellate order dated 31.03.2015 is found to be unsustainable which requires a reconsideration. It is, more so, in view of
the provision of the Notification dated 14.05.2003 that the nature of the undertaking to be given under Clause Nos.2 and 3 are different from each
other. It is stated by Ms. M Hazarika, learned Senior counsel for the petitioner that the conclusion of the authorities is also incorrect, inasmuch as, the
petitioner had submitted the required undertaking at the relevant point of time. If that is so, while reconsidering the matter, the authorities shall also
take into consideration such undertaking submitted by the petitioner.
For the purpose, the petitioner be also given an opportunity of hearing by the authorities by allowing them to produce any material that they may
desire to produce to substantiate their claim.
The aforesaid exercise be done within a period of 3(three) months from the date of receipt of a certified copy of this order.
In terms of the above, this writ petition stands disposed of.