IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Excise Reference No. 16 of 2001 & Excise Reference No. 22 of 2001 Reserved on: 1.09.2008 Date of decision: 4.09.2008 Commissioner, Central Excise, Chandigarh … Petitioner. Versus M/s Indian Overseas Corporation, Calcutta. … Respondent Coram The Hon’ble Mr.Justice Deepak Gupta, J. The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting?1 No. For the petitioner: Mr. Sandeep Sharma, Assistant Solicitor General of India. For the respondent. None. Per Deepak Gupta, J. Excise Reference No. 16 of 2001 has been admitted on the following substantial questions of law:- “1. Whether the Tribunal was correct in allowing rebate claim of the party when the goods were not exported directly from the factory or warehouse as stipulated under Notification No. 41/94-CE(NT) dated 12th September, 1994. 2. Whether the rebate can be granted when the mandatory conditions stipulated under governing Notification No. 41/94 – CE(NT)(ibid) were not fulfilled by the party.” Cross Reference No. 22 of 2001 has been filed by the assessee wherein it is contended that this Court has no jurisdiction 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 to entertain the reference and the same should have been filed in the Courts at Kolkata. The brief facts of the case are that the assessee exported 100% cotton yarn and applied for rebate claim. The Assessing Officer allowed the claim. An appeal was filed and the ground taken by the revenue was that the goods were not exported from the factory but from the branch office and therefore the assessee was not entitled to the rebate claim. The appeal was allowed by the Commissioner of Appeals, Chandigarh, who rejected the claim of the assessee. Surprisingly, the assessee filed a further appeal to the Customs Excise and Gold (Control) Appellate Tribunal, Calcutta. The learned Tribunal without going into the question of jurisdiction allowed the claim of the assessee. Aggrieved against the said order, the revenue filed the reference petition before this Court, which was admitted on 23.7.2001. A Cross-Reference has been filed by the assessee claiming that this Court has no jurisdiction since it was the Kolkata Bench of the Tribunal which had passed the order in reference. We may first take up the issue of jurisdiction. The facts are that the assessee M/s Indian Overseas Corporation exported 7000 kgs. of cotton yarn to Bangladesh, which it had purchased from the Depot/Branch Office of M/s Arisht Spinning Mills, which had its factory at Baddi in the State of Himachal Pradesh. It was the works at Baddi which were registered with the Central Excise Department. 3 The Depot/Branch Office of M/s Arisht Spinning Mills at Calcutta was not registered with the excise authority. The assessee M/s Indian Overseas Corporation filed a rebate claim, claiming that they were entitled to benefit of Rs.46,064/- in the office of the Assistant Commissioner, Central Excise, Shimla. Thereafter, the Assistant Commissioner, Shimla, accepted the plea of the assessee that the assessee was entitled to rebate of Rs.46,064/-. Against this order, an appeal was filed by the department with the Commissioner of appeals, Central Excise and Customs, Chandigarh. This appeal was allowed. Thereafter, the assessee straightway approached the Kolkata Bench of the Tribunal. We failed to understand how the Kolkata Bench had jurisdiction to entertain the matter. Be that as it may, since the assessee itself had submitted itself to the jurisdiction of the Assistant Commissioner at Shimla, he cannot at this stage challenge the jurisdiction of this Court. The only ground which weighed with the learned Tribunal was that the Central Board of Excise and Customs vide its notification dated 22.1.1975 had clearly permitted grant of rebate of excise duty even in respect of goods exported from a place outside the factory premises. The learned Tribunal did not take into consideration a subsequent notification of the Central Government issued on 12th September, 1994 wherein it has been clearly laid down that the rebate of duty paid on excisable goods shall on the export of the 4 goods be allowed only if the excisable goods are exported after payment of duty directly from the factory or warehouse. In the present case, the assessee had not exported the goods after payment of duty directly from a factory or warehouse but had exported the same from a branch office. The law is well settled that when an assessee wants to take benefit of any rebate he must satisfy all the conditions which are necessary for availing the rebate. Reference in this behalf may be made to Mihir Textiles Ltd. vs. Collector of Customs, Bombay, 1997 (92) E.L.T. 9 (S.C.), wherein the apex Court held as follows:- “12. xxx. Xxx.. xxx… This is not a case where a certain provision is mandatory or directory. Here the question is whether concessional relief of duty which is made dependent on the satisfaction of certain conditions can be granted without compliance of such conditions. No matter even if the conditions are only directory.” In fact, a learned Division Bench of this Court in Ex.Reference No. 16 of 2000, Commissioner, Central Excise Chandigarh vs. M/s Chandra Laxmi Tempered Glass Co. Pvt. Ltd., Barotiwala, decided on 4.7.2008, held as follows:- “Undoubtedly the requirement of the language is clear and unambiguous. The provisions of Statute and the Notification, keeping in view the object and the purpose, had to be fully complied with in letter and spirit. The requirements are mandatory and are not procedural as is sought to be argued on behalf of the assessee. The Legislative intent, the object and purpose is to check the defrauding of the Government by the 5 assesses resorting to similar double credits against single consignment by falsification of documents by various methods. The legislature only requires four particulars to be pre-printed, which in any event are within the prior knowledge of and pertains to the person issuing the invoice. Therefore, there is no justification for not complying with the same. The requirement of the law is that invoices were to be pre-printed and not hand written. The Legislative intent is evident from every word used in the Statute. The same has to be complied with. If the view taken by the Tribunal is accepted it would render the Statute redundant. Therefore, on the principle of Golden Rule of Interpretation, the view taken by the Tribunal is unacceptable.” Following the aforesaid judgements, we answer both the questions in favour of the revenue and against the assessee. The references are disposed of accordingly. ( Deepak Gupta ), J. 4th September, 2008 ( V.K.Ahuja ), J. ™