Special Cables Budgetary Support

taxsutra All rights reserved
HC: Area-based exemption denial to eligible-unit under excise-regime no

reason to restrict 'Budgetary-Support' benefit
Feb 09, 2023
SPECIAL CABLES PVT. LTD. [TS-27-HC(DEL)-2023-GST]
Conclusion
Delhi HC finds the manufacturing unit of assessee located in Rudrapur, U.K., manufacturing insulated
wires and cables, ASCR conductors, copper wires, aluminium wires etc., el Delhi HC finds the
manufacturing unit of assessee located in Rudrapur, U.K., manufacturing insulated wires and cables,
ASCR conductors, copper wires, aluminium wires etc., eligible for ‘budgetary support’ under
the Scheme of Budgetary Support under Goods and Services Tax (GST) Regime to units located in State
of Jammu & Kashmir, Uttarakhand, Himachal Pradesh and North-Eastern States including
Sikkim”; Clarifies that to claim the ‘budgetary support’, the unit must satisfy two conditions of para 4.1 of
the Scheme as notified by Notification dated October 5, 2017, i.e. (i) unit must be eligible before July 1,
2017 to avail benefit of ab initio exemption from payment of excise duty in terms of exemption
notification specified in para 2 (ii) unit must be availing such exemption immediately before July 1, 2017;
Finds that there is no dispute about assessee’s unit fulfilling the aforesaid conditions as it was availing
benefit of Area Based Exemption under Notification No. 50/2003-CE dated June 10, 2003 which was one
of the Notifications mentioned in para 2 of the Scheme; Revenue has disputed the fulfillment of second
condition on basis of ‘non-receipt of the intimation’ required by the exemption notification that requires
assessee’s to intimate the concerned authority about its entitlement to exemption w.r.t the newly
established manufacturing unit; Considering that assessee had continued to pursue its right to
exemption even though it was denied at the time of commencement of production in unit (i.e. before GST
inception) and instead was constrained to pay excise duty under protest, HC remarks “The fact that the
petitioner was denied the benefit at the material time, cannot be read to mean that the petitioner was
not availing the same”; HC clarifies that “second limb of the condition….is to merely distinguish those
units that have elected not to avail of the area-wise exemption or the term for which such benefit was
available has expired” but “The said condition cannot be read to exclude entities that have asserted their
claim for such exemption but the same has flowed to them subsequently in view of the Revenue
contesting the same.”; HC also pointed out that the order denying the support has been already set aside
by the Commissioner (A) and thereafter, Revenue’s appeal was rejected by the CESTAT; In this vein, HC
opines as the controversy relating to the eligibility of assessee stands settled by orders of Commissioner
(A) and CESTAT, “contention that the petitioner does not satisfy the second condition…before first day of
July 2017 is unmerited”; Therefore, noting that there is no other reason for denying budgetary
support but for the controversy that whether assessee was availing the benefit, which stands settled
now, directs the Revenue to release the budgetary support amount within 6 weeks gible for ‘budgetary
support’ under the Scheme of Budgetary Support under Goods and Services Tax (GST) Regime; Revenue
has disputed the fulfillment of second condition on basis of ‘non-receipt of the intimation’ required by the
exemption notification that requires assessee’s to intimate the concerned authority about its entitlement
to exemption w.r.t the newly established manufacturing unit; Considering that assessee had continued
to pursue its right to exemption even though it was denied at the time of commencement of production
in unit (i.e. before GST inception) and instead was constrained to pay excise duty under protest, HC
remarks “The fact that the petitioner was denied the benefit at the material time, cannot be read to
mean that the petitioner was not availing the same”; HC also pointed out that the order denying the
support has been already set aside by the Commissioner (A) and thereafter, Revenue’s appeal was
rejected by the CESTAT:HC DEL
Decision Summary
The judgment was delivered by Justice Vibhu Bakhru and Justice Amit Mahajan.
Advocates G.K. Sarkar, Malabika Sarkar and Prashant Srivastava appeared on behalf of Assessee,
whereas Revenue was represented by Advocates Sushil Kumar Pandey, Kuldeep Singh, Harpreet Singh
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and Suhani Mathur.
Facts
The Assessee is engaged in the business of manufacturing insulated wires and cables, ASCR conductors,
copper wires, aluminium wires etc., at its unit located at Sector-3, II E Pant Nagar, Rudrapur, Uttrakhand ;
contented that it is entitled to the budgetary support under the Scheme as it was entitled to Area Based
Exemption from Central Excise in terms of the Notification No.50/2003-CE dated 10.06.2003 as amended
from time to time . The Revenue have denied the budgetary support under the Scheme to the Assessee
on the ground that it did not fulfil the criteria of an ‘Eligible unit’ under the Scheme as it was not availing
the Area Based Exemption under the Notification. Assessee submitted that they commenced commercial
production from its unit on 27.03.2010 and informed the concerned Assistant Commissioner of excise of
such commencement of production and also enclosed copies of the first invoice regarding the first
clearance along with its letter dated 28.03.2010 , also claimed that it had complied with the
requirements of the Notification and was entitled to exemption from payment of excise duty. The
Assistant Commissioner of Central Excise, Rampur did not accept the petitioner’s claim and passed an
order of adjudication dated 24.08.2011 denying the Area Based Exemption under the Notification on the
ground of non-receipt of the intimation dated 09.10.2009.Assessee applied for Central Excise Registration
but informed the Assistant Commissioner that it would take legal recourse against the adjudication order
dated 24.08.2011 ,had also informed the Assistant Commissioner that the excise duty as demanded
would be paid under protest. Accordingly, the learned Commissioner (Appeals) allowed the Assessee’s
appeal by an order dated 23.12.2011 and set aside the adjudication order dated 24.08.2011 with
consequential relief. The Revenue’s appeal against the order dated 23.12.2011 passed by the
Commissioner (Appeals) was rejected by the learned CESTAT by an order dated 07.11.2017. Admittedly,
the said order was accepted and the Revenue has not taken any steps to challenge the same. In view of
the orders dated 23.12.2011 passed by the Commissioner (Appeals) and the order dated 07.11.2017 the
learned CESTAT , Assessee contented that it cannot be disputed that they are eligible for benefit under
the Notificaions ab-initio.Revenue, however, justified the denial by submitting that Assesssee was not
availing the same prior to the cut-off date of 07.07.2017 and therefore, would be disentitled to the
budgetary support under the Scheme.
High Court Observation
HC observes that paragraph 4.1 of the Scheme indicates that for a unit to qualify as an ‘eligible
unit’, it is required to satisfy two conditions. First that it was eligible before first date of July 2017
to avail the benefit of ab initio exemption or exemption by a refund for payment of central excise
duty in terms of notification as specified in paragraph 2 of the Scheme. And, second, that the unit
was availing such exemption immediately before the 01.07.2017. In the present case, there is no
dispute that the petitioner was eligible to avail the benefits of the Notification (Notification
No.50/2003-CE dated 10.06.2003), which was one of the Notifications as mentioned in paragraph
2 of the Scheme.
HC observes that the first condition stands settled by the order dated 23.12.2011 passed by the
learned Commissioner (Appeals) and the order of the learned CESTAT dated 07.11.2017.
The fact that the Assessee was denied the benefit at the material time, cannot be read to mean
that the Assessee was not availing the same . Thereby , The contention that the Assessee does
not satisfy the second condition of availing the said exemption before first day of July 2017 is
unmerited..
HC observes that the Assessee has also secured an order sanctioning refund of the said duty,
there can be no doubt that the Assessee has availed of the benefit under the Notification.
The second limb of the condition that the unit must be availing of the benefit of the Notifications
as mentioned in paragraph 2 of the Scheme immediately prior to 01.07.2017 is to merely
distinguish those units that have elected not to avail of the area-wise exemption or the term for
which such benefit was available has expired.
Conditions cannot be read to exclude entities that have asserted their claim for such exemption
but the same has flowed to them subsequently in view of the Revenue contesting the same.
Conclusion
Accordingly, HC opined “there is no other reason for denying the Assessee’s claim for budgetary

support under the Scheme and directs Revenue to release the budgetary support amount as
assessed to the petitioner in terms of the Scheme as expeditiously as possible , also directs to
grant registration to the Assessee to enable it to file online claims as prayed for by the Assessee
.”
Case Law Information
Appellant/Applicant/Complainant Name
• SPECIAL CABLES PVT. LTD
Respondent Name
• CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS & ORS.
Counsel of Appellant/Applicant/Petitioner
• G.K. Sarkar
• Malabika Sarkar
• Prashant Srivastava
Respondent Counsel
• Sushil Kumar Pandey
• Kuldeep Singh
• Harpreet Singh
• Suhani Mathur
Authority Level & Location

• High Court Delhi
Date of Pronouncement
• 2023-01-31
Ruling in favour of
• Not Available
Judges
• Justice Vibhu Bakhru

2023/DHC/000671
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 31.01.2023
+ W.P.(C) 7745/2019
M/S SPECIAL CABLES PVT. LTD. ..... Petitioner
versus
CENTRAL BOARD OF INDIRECT TAXES AND

CUSTOMS & ORS. ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Dr. G. K. Sarkar with Ms. Malabika Sarkar
& Mr. Prashant Srivastava, Advs.
For the Respondent : Mr. Sushil Kumar Pandey, & Mr. Kuldeep
Singh, Advs. for R1&2.
Mr. Harpreet Singh, SSC with Ms. Suhani
Mathur, Adv. for R3.
CORAM
HON’BLE MR JUSTICE VIBHU BAKHRU
HON’BLE MR JUSTICE AMIT MAHAJAN
JUDGMENT
VIBHU BAKHRU, J
1. The petitioner has filed the present petition being aggrieved by

denial of budgetary support under the “Scheme of Budgetary Support
under Goods and Services Tax (GST) Regime to units located in State
of Jammu & Kashmir, Uttarakhand, Himachal Pradesh and North-
Eastern States including Sikkim” (hereafter ‘the Scheme’) notified in
Signature Not Verified

Digitally Signed
By:Dushyant Rawal W.P.(C) No.7745/2019 Page 1 of 11
Signing Date:31.01.2023

2023/DHC/000671
terms of the Notification dated 05.10.2017 issued by the Ministry of

Commerce and Industry, Department of Industrial Policy and
Promotion.
2. The petitioner is engaged in the business of manufacturing

insulated wires and cables, ASCR conductors, copper wires, aluminium
wires etc., at its unit located at Sector-3, II E Pant Nagar, Rudrapur,
Uttrakhand.
3. The petitioner claims that it is entitled to the budgetary support

under the Scheme as it was entitled to Area Based Exemption from
Central Excise in terms of the Notification No.50/2003-CE dated
10.06.2003 as amended from time to time (hereafter referred to as ‘the
Notification’). The petitioner claims that it was entitled to such an
exemption from the date of commencement of production at its unit in
Rudrapur, Uttarakhand till 01.07.2017, the date when the Notification
ceased to apply with the roll out of the Goods and Service Tax regime.
In terms of the Scheme, all budgetary support would be available to all
eligible units under the erstwhile schemes in terms of the notifications
as specified in paragraph 2 of the Scheme.
4. The respondents have denied the budgetary support under the

Scheme to the petitioner on the ground that it did not fulfil the criteria
of an ‘Eligible unit’ under the Scheme as it was not availing the Area
Based Exemption under the Notification.

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2023/DHC/000671
5. In view of the above, the principal question that needs to be

addressed is whether the petitioner fulfilled the criteria as set out under
the Scheme for being considered eligible for budgetary support.
6. Paragraph 1.2 of the notification dated 05.10.2017 in terms of

which the Scheme was notified, expressly indicates that units which
were eligible under the erstwhile Schemes and were in operation
through exemption notifications issued by the Department of Revenue
in the Ministry of Finance, as listed under para 2 of the said Notification
would be considered eligible under the Scheme.
7. The Notification is specifically mentioned in sub-para 2.2 of the

aforementioned notification dated 05.10.2017. Therefore, indisputably,
those units, which were eligible for benefit of the Notification, would
be eligible for the benefit under the Scheme.
8. Paragraph 4.1 of the Scheme defines the term ‘eligible unit’ and
is set out below:
“4.1 ‘Eligible unit’ means a unit which was eligible

before 1st day of July, 2017 to avail the benefit of ab-
initio exemption or exemption by way of refund from
payment of central excise duty under notifications, as
the case may be issued in this regard, listed in para 2
above and was availing the said exemption
immediately before 1st day of July, 2017. The
eligibility of the unit shall be on the basis of
application filed for budgetary support under this
scheme with reference to:

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2023/DHC/000671
(a) Central Excise registration number, for the

premises of the eligible manufacturing unit, as it
existed prior to migration to GST; or
(b) GST registration for the premises as a place of
business, where manufacturing activity under
exemption notification no. 49/2003-CE dated
10.06.2003 and 50/2003-CE dated 10.06.2003 were
being carried prior to 01.07.2017 and the unit was not
registered under Central Excise.”
9. The key question to be addressed is whether the petitioner’s unit
was entitled to the benefit of the Notification, and was availing the
exemption immediately before the first date of July 2017.
10. The aforesaid controversy arises in the following factual context:
a. The petitioner had set up its unit at Pant Nagar in Rudrapur and
in compliance with the Notification, issued a letter dated 09.10.2009
informing the Jurisdictional Commissioner that the petitioner was
entitled to avail the exemption of excise duty in respect of newly
established manufacturing units as available under the Notification.
Thereafter, the petitioner commenced commercial production from its
unit on 27.03.2010 and informed the concerned Assistant
Commissioner of excise of such commencement of production. The
petitioner also enclosed copies of the first invoice regarding the first
clearance along with its letter dated 28.03.2010.
b. There is some controversy with regard to the receipt of the

aforementioned intimation. According to respondent no.3, he did not
receive the said intimations and therefore, denied the petitioner’s

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2023/DHC/000671
exemption under the Notification. This was communicated to the

petitioner by a letter dated 18.05.2010. Thereafter, the Assistant
Commissioner, Rampur issued a Show Cause Notice dated 22.03.2011,
calling upon the petitioner to show cause as to why it should not be
denied the benefit of exemption from payment of Central Excise under
the Notification and the excise duty on goods manufactured and cleared
by the petitioner during the period of January 2010 to September 2010
not be recovered under Section 11A of the Central Excise Act, 1944
along with penalty and interest.
c. The petitioner responded to the Show Cause Notice by its letter

dated 13.07.2011 enclosing therewith, the intimations dated 09.10.2009
sent to the concerned authority. The petitioner claimed that it had
complied with the requirements of the Notification and was entitled to
exemption from payment of excise duty.
d. The Assistant Commissioner of Central Excise, Rampur did not

accept the petitioner’s claim and passed an order of adjudication dated
24.08.2011 denying the Area Based Exemption under the Notification
on the ground of non-receipt of the intimation dated 09.10.2009.
e. In view of the above, the petitioner applied for Central Excise

Registration but informed the Assistant Commissioner that it would
take legal recourse against the adjudication order dated 24.08.2011.
According to the petitioner, it had also informed the Assistant
Commissioner that the excise duty as demanded would be paid under
protest.

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2023/DHC/000671
f. The petitioner paid the excise duty as demanded albeit under

protest. This was also informed to the Jurisdictional Assistant
Commissioner. The petitioner also informed the concerned Assistant
Commissioner, by its letter dated 03.10.2011, that it was paying the duty
under protest. The petitioner appealed the adjudication order dated
24.08.2011 to the learned Commissioner (Appeals).
g. The petitioner prevailed in its appeal before the learned

Commissioner (Appeals). The learned Commissioner found that the
intimation dated 20.10.2009 was acknowledged by the Deputy
Commissioner (Tech.), Customs and Central Excise, Meerut-II and
therefore, the petitioner was entitled to exemption from excise duty
under the Notification. Accordingly, the learned Commissioner
(Appeals) allowed the petitioner’s appeal by an order dated 23.12.2011
and set aside the adjudication order dated 24.08.2011 with
consequential relief.
h. The Revenue assailed the order dated 23.12.2011 passed by the

Commissioner (Appeals) before the Central Excise and Service Tax
Appellate Tribunal (hereafter ‘CESTAT’). Although the order dated
23.12.2011 was not stayed, the Department issued several show cause
notices to the petitioner demanding excise duty for goods cleared after
September 2010. The petitioner states that in view of the above, it
continued to pay excise duty under protest.
i. The Revenue’s appeal against the order dated 23.12.2011 passed

by the Commissioner (Appeals) was rejected by the learned CESTAT

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2023/DHC/000671
by an order dated 07.11.2017. Admittedly, the said order has been

accepted and the Revenue has not taken any steps to challenge the same.
The show cause notices issued by the authorities after the learned
Commissioner (Appeals) had passed an order dated 23.12.2011 being
show cause notices dated 05.01.2012, 29.03.2012, 09.07.2012 and
04.10.2012 were dropped. The petitioner also sought refund of
₹84,79,750/- being the excise duty paid under protest. The petitioner’s
application for refund was allowed by the learned Joint Commissioner
in terms of the order dated 28.04.2022. However, the said amount had
been directed to be credited in the Consumer Welfare Fund in terms of
Section 11B(2) of the Central Excise Act, 1944.
j. The petitioner has not accepted the said order and has challenged
the same to the extent that it directs the refund to be credited in the
Consumer Welfare Fund.
11. It is apparent from the above that the controversy whether the
petitioner was entitled to avail Area Based Excise Exemption under the
Notification is fully resolved. Undisputedly, the petitioner was entitled
to the benefit of the Notification. As noted above, in terms of paragraph
4.1 of the Scheme, a unit, which was eligible before the first day of July
2017 to avail the exemption under the Notification as specified in
paragraph 2 of the Scheme and was availing such exemption before the
cut-off date of first July 2017, would fall within the definition of the
term ‘eligible unit’. In view of the orders dated 23.12.2011 passed by
the Commissioner (Appeals) and the order dated 07.11.2017 passed by

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2023/DHC/000671
the learned CESTAT, it cannot be disputed that the petitioner was

eligible for benefit under the Notifications ab-initio.
12. Mr Harpreet Singh, learned counsel appearing for the

respondents states that notwithstanding that the petitioner was eligible
to avail the benefits under the Notification, it was, in fact, not availing
the same prior to the cut-off date of 07.07.2017 and therefore, would be
disentitled to the budgetary support under the Scheme.
13. A plain reading of paragraph 4.1 of the Scheme indicates that for
a unit to qualify as an ‘eligible unit’, it is required to satisfy two
conditions. First that it was eligible before first date of July 2017 to
avail the benefit of ab initio exemption or exemption by a refund for
payment of central excise duty in terms of notification as specified in
paragraph 2 of the Scheme. And, second, that the unit was availing such
exemption immediately before the 01.07.2017. In the present case, there
is no dispute that the petitioner was eligible to avail the benefits of the
Notification (Notification No.50/2003-CE dated 10.06.2003), which
was one of the Notifications as mentioned in paragraph 2 of the Scheme.
14. As noted above, the said controversy stands settled by the order
dated 23.12.2011 passed by the learned Commissioner (Appeals) and
the order of the learned CESTAT dated 07.11.2017. The contention that
the petitioner does not satisfy the second condition of availing the said
exemption before first day of July 2017 is unmerited. The fact that the
petitioner was denied the benefit at the material time, cannot be read to
mean that the petitioner was not availing the same. The petitioner had

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2023/DHC/000671
claimed such benefit from commencement of commercial production

and had pursued the matter with the concerned authorities. As noted
above, the petitioner was not granted the benefit and therefore, had paid
the duty of central excise under protest but at the same time, had
continued to pursue its right to exemption under the Notification. The
petitioner had finally prevailed and was found entitled to the said
exemption. The petitioner’s application for refund of duty paid under
protest was also partly allowed by an order dated 28.04.2022. In terms
of the said order, the Joint Commissioner, CGST had sanctioned the
refund claim of ₹84,79,750/- (eighty four lacs seventy nine thousand
seven hundred and fifty only) but had directed the same to be credited
in the Consumer Welfare Fund in terms of Section 11B(2) read with
Section 12(C)(2)(a) of Central Excise Act, 1944. The controversy
whether the said amount is to be refunded to the petitioner or to be
deposited in the Consumer Welfare Fund is a contested one as the
petitioner has not accepted the same. However, insofar as the sanction
of refund of excise duty is concerned, there is no controversy that the
goods cleared by the petitioner from its unit at Rudrapur were exempt
from excise duty ab initio by virtue of the Notification. Since the
petitioner has also secured an order sanctioning refund of the said duty,
there can be no doubt that the petitioner has availed of the benefit under
the Notification.
15. There is no doubt that in the given facts as obtaining in the present
case, it is clear that the petitioner had from inception indicated its
intention to avail of the benefits of the Notification. It had further

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2023/DHC/000671
pursued its right to such exemption. The petitioner had prevailed before
the Commissioner (Appeals) prior to the roll out of the GST Regime.
The fact that the respondents had carried the matter to learned CESTAT
and in the meantime, had insisted on collecting the central excise duty,
which was paid by the petitioner under protest, cannot be construed to
hold that the petitioner had not availed of the benefits immediately prior
to 01.07.2017.
16. The second limb of the condition that the unit must be availing
of the benefit of the Notifications as mentioned in paragraph 2 of the
Scheme immediately prior to 01.07.2017 is to merely distinguish those
units that have elected not to avail of the area-wise exemption or the
term for which such benefit was available has expired.
17. The said condition cannot be read to exclude entities that have
asserted their claim for such exemption but the same has flowed to them
subsequently in view of the Revenue contesting the same.
18. It is material to note that it is not disputed that but for the
controversy whether the petitioner was availing the benefit of the
Notification, as noted above, there is no other reason for denying the
petitioner’s claim for budgetary support under the Scheme.
19. In view of the above, we direct the respondents to release the

budgetary support amount as assessed to the petitioner in terms of the
Scheme as expeditiously as possible but in any event within a period of
six weeks from today. Respondent no.3 is also directed to grant

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2023/DHC/000671
registration to the petitioner to enable it to file online claims as prayed

for by the petitioner.
20. The appeal is allowed in the aforesaid terms.
21. The parties are left to bear their own costs.
VIBHU BAKHRU, J
AMIT MAHAJAN, J
JANUARY 31, 2023
‘gsr’

Digitally Signed

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taxsutra All rights reserved

HC: Area-based exemption denial to eligible-unit under excise-regime no

Feb 09, 2023

SPECIAL CABLES PVT. LTD. [TS-27-HC(DEL)-2023-GST]

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and Suhani Mathur.

High Court Observation

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Case Law Information

Authority Level & Location

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IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment delivered on: 31.01.2023

M/S SPECIAL CABLES PVT. LTD. ..... Petitioner

CENTRAL BOARD OF INDIRECT TAXES AND

1. The petitioner has filed the present petition being aggrieved by

Signature Not Verified

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terms of the Notification dated 05.10.2017 issued by the Ministry of

2. The petitioner is engaged in the business of manufacturing

3. The petitioner claims that it is entitled to the budgetary support

4. The respondents have denied the budgetary support under the

Signature Not Verified

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5. In view of the above, the principal question that needs to be

6. Paragraph 1.2 of the notification dated 05.10.2017 in terms of

7. The Notification is specifically mentioned in sub-para 2.2 of the

“4.1 ‘Eligible unit’ means a unit which was eligible

Signature Not Verified

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(a) Central Excise registration number, for the

10. The aforesaid controversy arises in the following factual context:

b. There is some controversy with regard to the receipt of the

Signature Not Verified

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exemption under the Notification. This was communicated to the

c. The petitioner responded to the Show Cause Notice by its letter

d. The Assistant Commissioner of Central Excise, Rampur did not

e. In view of the above, the petitioner applied for Central Excise

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f. The petitioner paid the excise duty as demanded albeit under

g. The petitioner prevailed in its appeal before the learned

h. The Revenue assailed the order dated 23.12.2011 passed by the

i. The Revenue’s appeal against the order dated 23.12.2011 passed

Signature Not Verified

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by an order dated 07.11.2017. Admittedly, the said order has been

Signature Not Verified

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the learned CESTAT, it cannot be disputed that the petitioner was

12. Mr Harpreet Singh, learned counsel appearing for the

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claimed such benefit from commencement of commercial production

Signature Not Verified

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19. In view of the above, we direct the respondents to release the

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registration to the petitioner to enable it to file online claims as prayed

20. The appeal is allowed in the aforesaid terms.

21. The parties are left to bear their own costs.

Signature Not Verified