2011 (10) TMI 449 - AT - Central Excise

SSI exemption - simultaneous availment of SSI exemption on their own products and payment of full rate of duty in respect of goods manufactured on loan licence basis - clubbing of clearance - held that - the appellant has availed both the facilities i.e. full exemption on Rs. 30 lakhs on the goods cleared by them on their own behalf and availing Modvat facility or payment of full duty in respect of the clearances made on behalf of M/s. Pharma Links is contrary to the provisions of these Notifications and, therefore, the demand has rightly been made by the department. The value of the clearances made by the appellant on behalf of M/s. Pharma Links are to be clubbed for the purpose of paying duty under these Notifications. - the appellants have the option to pay duty/avail Modvat facility or avail the duty free clearances in respect of the Notifications and they cannot avail both the facilities

Summary

Issues Involved:
1. Entitlement to SSI exemption under Notification No. 1/93-C.E. and No. 7/97-C.E.
2. Clubbing of clearances for goods manufactured by the appellant and on behalf of M/s. Pharma Links.
3. Option to avail duty-free exemption limit and Modvat facility simultaneously.
4. Inclusion of export clearances in the total value of clearances for duty calculation.

Detailed Analysis:

1. Entitlement to SSI Exemption:
The appellant, engaged in manufacturing Organic and Inorganic Chemicals, claimed SSI exemption under Notification No. 1/93-C.E. and No. 7/97-C.E. The Tribunal noted that under these notifications, the aggregate value of clearances from a factory by one or more manufacturers should not exceed specified limits (Rs. 30 lakhs, Rs. 20 lakhs, and Rs. 25 lakhs). The Tribunal emphasized that clearances made on behalf of M/s. Pharma Links must be clubbed with the appellant's clearances to determine eligibility for SSI exemption.

2. Clubbing of Clearances:
The Tribunal found that the clearances made by the appellant on behalf of M/s. Pharma Links must be clubbed with the appellant's clearances for the purpose of SSI exemption under Notification No. 1/93-C.E. and No. 7/97-C.E. This conclusion was based on the conditions stated in these notifications, which require the aggregate value of clearances from a factory by one or more manufacturers to be taken into account.

3. Option to Avail Duty-Free Exemption and Modvat Facility:
The Tribunal held that the appellant could not simultaneously avail both full exemption on Rs. 30 lakhs of clearances and Modvat facility for the goods cleared on behalf of M/s. Pharma Links. According to Notification No. 1/93-C.E., para 1(a)(i) allows concessional rate if Modvat credit is availed, while para 1(a)(ii) provides full exemption if Modvat is not availed. The same principle applies to Notification No. 7/97-C.E., where the option to pay duty or avail exemption must be consistent throughout the financial year.

4. Inclusion of Export Clearances:
The Tribunal acknowledged the appellant's contention that the value of export clearances should not be included in the total value of clearances for duty calculation. It was found that under the relevant notifications, only the value of clearances for home consumption should be considered. Consequently, the Tribunal directed the original authority to exclude the value of export clearances (Rs. 5,94,000/-) from the total value while recalculating the duty liability.

Conclusion:
The Tribunal upheld the Order-in-Appeal by the Commissioner (Appeals), confirming the clubbing of clearances for SSI exemption purposes and rejecting the simultaneous availment of full exemption and Modvat facility. However, it directed the exclusion of export clearances from the total value for duty calculation and remanded the case to the original authority for recalculating the duty liability accordingly.