Plea raised by the petitioner with regard to the claim of exemption under Section 11C of the Central Excise Act.

PJ/Case Law/2016-17/3350

Case- THIRUMALAI VASAN SAGO & STARCH PRODUCTS Versus C.C., C. EX. & S.T.-I, SALEM

Citation- 2016 (340) E.L.T. 47 (Mad.)

Brief Facts- The petitioner is a Manufacturer of Tapioca Sago (Sabudana) and he has filed W.P. No. 29770 of 2015, to forbear the first respondent from in any manner proceeding to assess or recover central excise duty on the clearance of Sabudana for the period between 1-3-2011 and 28-2-2013 pending disposal of the application dated 4-4-2015 filed by the petitioner’ before the 3rd respondent herein. The petitioner has also filed W.P. No. 29771 of 2015, to direct the third respondent to dispose the application dated 4-4-2015, invoking Section 11C of the Central Excise Act, 1944 and waive the Central Excise Duty liability on the clearance of Tapioca Sago (Sabudana) for the period between 1-3-2011 and 28-2-2013. The problem arose on account of the fact that after 1-4-2011, Excise Duty was levied on Tapioca and the substitutes there from manufactured from starch at 1%.

Appellant’s Contention- The petitioner submits that apart from the plea raised by the petitioner with regard to the claim of exemption under Section 11C of the Central Excise Act, the petitioner in the affidavits filed in support of the writ petitions raised other grounds on merits as well as on the ground of limitation and those issues may be left open to be adjudicated upon by the petitioner before the appropriate Forum, on merits as well as on law.

Respondent’s Contention- The present petitioner and their Association viz. the fourth respondent and other similarly placed persons submitted representations to the Government requesting for grant of exemption from levy of excise duty on the clearances of Tapioca Sago. The Government acceded to their request and by Notification No. 12/2013-C.E., dated 1-3-2013, granted exemption and the grant on duty was ‘Nil’. However, the benefit of the Notification dated 1-3-2013, was prospectively, i.e., 1-3-2013. This lead to water-shed area for the period between 1-3-2011 and 28-2-2013. As a result, notices were issued to the petitioner as well as the members of the fourth respondent Association and it is stated that the matters are in the various States before various Forums and some of the cases are before the CESTAT in the appeals filed by the assessees against the issue on Excise Duty for the said period. In the background of the aforesaid facts, the petitioner along with others submitted representations to the Government of India requesting them for issuance of Notification under Section 11C of the Central Excise Act, 1944, to waive duty of Excise of Tapioca Sago.

Reasoning of Judgment- During the pendency of the writ petitions, it is submitted that the Government of India by an order dated 15-3-2016, has rejected the petitioner’s request for grant of exemption. Thus, the prayer sought for in the writ petitions have become infrcutuous. The writ petitions are dismissed as infructuous, leaving it open to the petitioner to raise all the contentions before the appropriate Forum. No costs. Consequently, connected miscellaneous petition is closed.

Decision:- Appeal disallowed.

Comment – The gist of the case is that the petitioner has raised a plea to avail the claim of exemption on manufacture of tapioca sago but the Government of India by an order rejected the request for grant of an exemption which further make the writ petitions as in fructuous & thus the appeal stands dismissed.

Prepared by- Alakh Bhandari

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PJ/Case Law/2016-17/3350

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