2004 (12) TMI 414 - AT - Central Excise

Summary

Issues:
Availability of exemption under Notification No. 85/85 for the appellants.

Analysis:
The appeal concerns the availability of exemption under Notification No. 85/85 for the appellants against the impugned order-in-original. The appellants were engaged in the production of plywood block board, etc., during the disputed period and were later taken over by M/s. J.K. Industries Ltd. They were issued a show cause notice denying them the benefit of the said notification for the years 1986-1987 to 1989-1990, and were asked to pay duty and face proposed penalties.

The adjudicating authority confirmed the demand by denying the appellants the benefit of the notification, citing that their clearances exceeded the limit prescribed under notification No. 175/86-C.E. and that they were not registered with the Director of Industries as required. The authority also mentioned that the appellants were not entitled to the notification's benefit as their clearances exceeded 7.5 lakhs.

Upon review, the Tribunal found that the adjudicating authority failed to consider only the individual clearances of the appellants to determine if they exceeded the limit under Notification No. 85/85. The authority incorrectly clubbed the clearances of the appellants with that of M/s. J & K Industries, even though the latter only managed the appellants' affairs after taking them over. The Tribunal emphasized that the clearances of the other unit of M/s. J. & K. Industries should not have been considered to determine the appellants' clearances individually.

The Tribunal set aside the impugned order and remanded the matter to the Commissioner for a fresh decision. The Commissioner was instructed to re-examine the availability of the exemption notification as per the details in Notification No. 175/86, dated 1-3-1986, and to determine the duty liability of the appellants. The Commissioner was directed to consider the appellants' arguments regarding the non-clubbing of their clearances with M/s. J & K Industries, as the appellants ceased to be the industry's owners upon the takeover.

In conclusion, the Tribunal directed a re-examination of the case by the Commissioner, emphasizing the need to consider the individual clearances of the appellants and their entitlement to the exemption under Notification No. 85/85 separately from M/s. J & K Industries.