S.S. Kang, Member, (J)

1. The applicants filed this Miscellaneous Application No.C/468/02-C for change of cause title of the appeal from M/s. Modi Cements Ltd. to M/s. Ambuja Cement Eastern Ltd. As the management of M/s. Modi Cement Ltd. was taken over by M/s. Ambuja Cement Eastern Ltd. and in support of this, the appellants filed the certificate issued by the Registrar of Companies. In this situation, the application is allowed and the cause title is changed to M/s. Ambuja Cement Eastern Ltd. The applicants also filed another application No. C/370/02-C for producing additional documents. We find that the appellant wants to produce the certificate issued by the Head Clerk of Railway. The certificate is undated, nor it is made clear in the certificate whose asking this certificate was issued. The other document, the appellant wants to produce is the certificate issued by their own Senior Sales Officer. The averments made in the certificate are similar to the pleading made in the appeal. This is neither a document nor it is a piece of evidence. In the circumstances, we dismiss the application for producing the additional documents.

2. The appellants filed this appeal against the adjudication order passed by the Commissioner of Central Excise.

3. The brief facts of the case are that the appellants are engaged in the manufacture of cement and cleared the same under Notification No. 37/86-C.E., dated 1-3-86. This notification was rescinded with effect from 31-3-1990. A show cause notice was issued to the appellants demanding duty in respect of 12303.35 MT of cement on the ground that the appellants issued gate passes showing the clearances on 26-3-90 and 31-3-90 whereas the cement was removed after 31-3-90 from the factory. Therefore, the appellants wrongly availed the benefit of Notification No. 37/86-C.E. in respect of the cement cleared after 31-3-90.

4. The appellants filed reply to the show cause notice and thereafter the adjudicating authority confirmed the demand and imposed the penalty.

5. The contention of the appellants is that the cement in question was cleared in the railway wagons allotted by the railway department from Bhatapara railway exchange yard. The railway department allotted eight rakes for loading of the cement and during the period 23-10-90 and 31-3-90 the appellants loaded the cement in the racks after issuing the GP-1s, from their bonded silos. The senior goods clerk of railways also put his endorsements on the drawn out memos affirming the completion as well as time of loading of the cement in the racks. The contention of the appellants is that the goods were cleared from the warehouse before 1-4-90, therefore in view of Rule 9A of the Central Excise Rules, the rate of duty applicable prior to 1-4-90 is applicable.

6. The contention of the appellants is that the railway receipts i.e. RR were issued subsequently by the railway department at the time these racks reached Bhatapara Railway Station located at distance 17 kilometre from the factory. This practice of issuing RR at the time when the racks reached at Bhatapara Station was changed from month of August, 1999 and now the railway started issuing the railway receipts at the time the drawn out memo was prepared.

7. The contention of the Revenue is that the railway receipts in respect of cement in question were issued after 31-3-90 which shows that the cement in question was removed from their factory after 31-3-90. Therefore, the appellants are not entitled to the benefit of Notification No. 37/86-C.E.

8. We have heard both the sides and also taken into consideration the written submissions filed by the appellants.

9. In this case, the issue is whether the cement, on which duty was demanded, is removed from the factory of the appellants prior to 31-3-90 or thereafter. Rule 9A of the Central Excise Rules provides that the rate of duty and Tariff value, if any, applicable in the excisable goods shall be the rate of value in force in case the goods removed from the factory or from the warehouse on the date of actual removal of such goods from such factory or warehouse. The contention of the appellants is that the goods were loaded in the wagons prior to 31-3-90, therefore the goods deemed to be removed from the bonded warehouse from 31-3-90.

10. We find that the railway receipts were issued by the railway department after 31-3-90 regarding the receipt of the cement in question. This fact is admitted by the appellants. The contention of the appellants is only that the department of railway was issuing RR at that time when the loaded wagons reached at Bhatapara railway station. In support of this contention, the appellants had not produced any evidence. We find that the Honble Supreme Court in the case of Novopan India Ltd. v. CCE, Hyderabad, 1994 (73) E.L.T. 769 (S.C.) held that a person invoking an exception or exemption provision to relieve him of the tax liability must establish clearly that he is covered by the said provision. In case of doubt or ambiguity, benefit of it must go to the State.

11. We find that in this case the onus is on the appellant to prove that the cement in question was cleared from the factory on or prior to 31-3-90. The contention of the appellants is only that railway receipts were issued by the railway department at the time of receipt of wagons at the railway station after loading. The appellants have also relied upon the drawn out memo signed by the some railway officials. The appellants had not produced any evidence from the railway department in respect of their claim. On the contrary the Revenue has relied upon the railway receipts issued by the railway department in respect of the cement in question which were issued after 31-3-90. This fact is also not denied by the appellants. In the circumstances, we find that no infirmity in the impugned order whereby the Commissioner has held that the cement in question was removed from the factory of the appellants after 31-3-90, therefore, the appellants are not entitled to the benefit of Notification No. 37/86-CE. The appeal is dismissed.