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TMI Blog1992 (3) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... these documents earlier as no opportunity whatsoever was granted by the Collector (Appeals) before placing reliance on the suo motu enquiries made by him from the concerned authorities of the Director of Industries. As the matter in issue pertains to grant of exemption under Notification No. 175/86, the production of these documents are material and also necessary to determine the controversy in the case. Hence, on a careful consideration of the matter, the Misc. application is allowed in the interest of justice. 3. The issue that arises for our consideration in this appeal is the grant of exemption of Notification No. 175/86, dated 1-3-1986 to the appellants. The facts of the case are that the appellants had filed classification list No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was run in the name of M/s. Bharat Diamond Industries who had already crossed the limits of Rs. 40 lakhs at the concessional rates of duty in terms of the said notification at the time of their take over. As a result there was no concessional rate of duty available to them under the said Notification No. 77/85-C.E. in respect of clearance from the said factory thereafter till 31-3-1985. They had also contended that there was an unintended omission on their part in not claiming the benefit of the said notification and that they were deemed to be availing the benefit of Notification No. 77/85-C.E. They had also raised several other contentions before the Collector (Appeals). The learned Collector (Appeals) has not accepted their plea that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-1991 is also produced which notes the change in the name of the unit and necessary endorsement duly made in the SSI Registration Certificate by the concerned authorities. He also relied on the Order No. E/157/99-B1, dated 16-8-1991 passed by Tribunal as reported in 1992 (58) E.L.T. 98 in the case of Accura Industries v. Collector of Central Excise. In this case on the consideration of the admitted fact of clearances made during preceding three years, the Bench had held that the assessee were availing the exemption under Notification No. 77/85 during the preceding financial year 1985-86 and hence the exemption for 1986-87 was rightly given. The Bench has held at para 4 as follows :- We have carefully considered the pleas advanced on both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants do not have an SSI registration certificate in respect of their unit at Lower Parel. Their plea that SSI registration certificate for their unit at Andheri (since sold out) should be treated as applicable for their unit at Lower Parel cannot be accepted. We however, find sufficient merit in their plea that they had been availing of the exemption during the preceding financial year under this notification or the Notification No. 77/83 or 77/85. The fact that they were availing of the exemption in the preceding financial year under this very Notification 175/86 cannot be disputed at this stage because it is admitted in the order-in-original that the benefit of the Notification 175/86 was extended to them by the approval of the classifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification 77/85 during the preceding financial year 1985-86 and hence it was rightly given the exemption under Notification 175/86 for the financial year 1986-87". Shri Sridharan relying on the documents and the ruling noted above, argues that the citation is fully applicable to the facts of his case. Sh. Sharma learned DR contended that the benefit has been wrongly availed and hence the benefit of the notification cannot be granted to the appellants. 7. We have carefully considered the submissions of both the sides. The Bench in the case of Accura Industries (supra) has observed in para 4 of the order that the question whether a manufacturer was availing of the exemption would depend upon whether it was liable to avail of the exem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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