- (1.) The learned Counsel appearing for the appellant intends us to admit this appeal on the following points as per the formulation of the appellant:- (i) Whether the order passed by the Ld. Tribunal is perverse for not considering the relevant evidence and material that the demand is prematured and the conditions of Notification were fulfilled strictly and otherwise also since there cannot be any grower other than the small growers in West Bengal in terms of the provisions of Section 14M(e) and 14K(f)(ii) of the West Bengal Land Reforms Act, 1955, as amended. (ii) Whether the order passed by the Ld. Tribunal denying the benefit of Notification No. 13/2003-C.E. dated 1-3-2003 is justified more particularly when the said order has been passed misconstruing the provisions of the Notification and passing two different orders for a financial year for the same issue in respect of the same party. (iii) Whether penalty can be imposed when the matter relates to the interpretation of the Notification. Having heard the learned Counsel for two days in this matter and having gone through the impugned judgment and order of the learned Tribunal factually it appears that the appellant approached the learned Tribunal having been denied the benefit emanating from the notification which provides exemption from the additional excise duty on the tea. However, this exemption could be granted on the condition that not less than two-thirds of the green leaf used in the factory of the industry concerned during the period from the date of filing the declaration till the end of financial year shall be purchased from growers each having a holding not exceeding ten hectares under tea cultivation. The explanation to the notification provides that 'bought leaf factory' means a factory which purchase not less than two-thirds of the green leaf processed by it in the preceding financial year from any grower who has a holding not less than ten hectares of land of cultivation of tea.
(2.) In fact the appellant before us admittedly did not purchase tea leaf from the tea grower as mentioned in the said notification, rather engaged middleman for procurement of tea leaf by and under written agreement. This factual aspect is undisputed. The learned Tribunal has noted this fact it has noted also that even in the agreement there is no stipulation that the middleman will collect tea leaf from those cultivators who are having less than ten hectares of land. It has also been noted by the learned Tribunal that the lower authority found that the money receipts and the delivery challans could not be correlated and the signature of the grower on the challans did not tally with the signature on any payment receipts in respect of tea.
(3.) Thus the appellant has failed to establish the fact that it has fulfilled the conditions in terms of the notification to get the benefit of exemption. The learned Counsel, however, submits that in view of the provision of West Bengal Land Reforms Act, 1955 in West Bengal it is not possible to get any tea growers having land measuring about ten hectares of land. Taking note of this fact, the Commissioner of Appeal has granted relief and this order has not been challenged as yet. The said order is produced before us for the first time.;