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2016 (11) TMI 102 - AT - Central ExciseDemand of differential duty - SSI exemption - opting out of SSI scheme subsequently - Held that - the show cause notice itself indicates that for the period from 1.9.2003 to 31.3.2004 the total clearance value of the appellant still is less than 30 lakhs which is the threshold limit. Same is the case in respect of the period 1.4.2004 to 8.7.2004. If the entire clearance during the period in question is less than the threshold limit there cannot be any duty liability on the appellant as has been held by the Tribunal in the case of CCE Kanpur vs. A.K. Chemicals (P) Ltd. 2010 (8) TMI 343 - CESTAT NEW DELHI wherein it was held that if intermittently central excise duty is paid it would not amount to the fact that the appellant has opted out of the small scale exemption; same is the view expressed by the Tribunal in the case of CCE Kanpur vs. Jaina Detergent Pvt. Ltd. 2014 (3) TMI 162 - CESTAT NEW DELHI - demand not sustainable - appeal allowed - decided in favor of appellant.
Issues: Determination of central excise duty liability under Small Scale Industries Exemption Notification.
Analysis: 1. Issue: Whether the appellant is required to discharge the differential central excise duty demanded and confirmed by the lower authorities. Analysis: The appellant had claimed the benefit of Small Scale Industries Exemption Notification No.34/2003 as amended by Notification No.47/2003. The Revenue contended that by discharging duty liability on some consignments, the appellant opted out of the exemption benefit, necessitating the discharge of duty liability for specific periods. However, upon review, it was found that the total clearance value of the appellant remained below the threshold limit during the relevant periods. Citing precedents such as CCE vs. A.K. Chemicals and CCE vs. Jaina Detergent Pvt. Ltd., the Tribunal emphasized that intermittent duty payments do not imply opting out of the exemption. Referring to Salvi Chemicals Industries vs. CCE, Mumbai, the Tribunal concluded that the impugned order was unsustainable and set it aside, allowing the appeals. 2. Outcome: The impugned order was set aside, and the appeals were allowed, as pronounced in court on 28.9.2016.
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