Ajay Mohan Goel JUDGMENT
Surya Kant, C.J.
1. This Central Excise Appeal is directed against the Order dated 25.04.2017, passed by the Customs, Excise & Service Tax Appellate Tribunal (in short 'the Tribunal') in Appeal No. E/2577/2007, as also the Order dated 10.08.2017, whereby the appellant's Review Application against the above mentioned order has been dismissed.
2. The facts as revealed from the order dated 25th April, 2017 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 10.06.2003 as a new Manufacturing Unit set up after 07.01.2003, the assessee in its Declaration filed on 25th November, 2004 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 10.06.2003 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'.
3. Aggrieved by the order of Commissioner (Appeals) granting relief in part, both sides went in appeal before the Tribunal, which vide its order dated 25.04.2007 held that in its Declaration filed on 25.11.2004, 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.
4. 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 Tribunal further observed that even on the date of hearing, the assessee failed to lead any evidence to substantiate the plea of filing of such Declaration on '13.05.2005'. In such fact situation, when the assessee had not filed the Declaration before the first clearance of the specified goods, the Tribunal held that the assessee was not entitled to claim the benefit of exemption under Notification dated 10.06.2003 on these additional goods. Both the appeals were thus dismissed.
5. The Appellant thereafter filed Review Application pointing out, inter-alia, that there was an error apparent on the record as the Tribunal had proceeded on the premise that the appellant filed its 2nd Declaration on '13.05.2005', whereas the said Declaration was filed on '13.04.2005' and there was enough proof comprising original postal receipt to prove the filing of such Declaration.
6. The Tribunal nonetheless was not convinced with the aforesaid factual plea and dismissed the appellant's Review Application observing as follows:-
"4. On perusal of the records, we find that the declaration is undated which has been reflected at page 23 and at page 24, there is postal receipt which is dated 13.04.2005. In the appeal papers, the contention of the applicant is that they have filed declaration on 13.05.2005. Admittedly, no declaration has been filed on 13.05.2005. In that circumstance, there is no mistake apparent on the face of record in the order passed by this Tribunal on 25.0........