9911796707
TMI Blog2001 (9) TMI 956X X X X Extracts X X X X X X X X Extracts X X X X ..... of scrap falling under heading 7001.10 of the CET. As a consequence, the Revenue rejected the refund claim of Rs. 2,16,360/- for the period 7-7-95 to 22-8-95. The Notification lays down a condition that the exemption would be available only to the factory which manufacture no dutiable goods. The proviso states that if dutiable goods are manufactured and the scrap is removed, then the exemption would not apply. The Commissioner has appreciated the pleas made by the assessee and has accepted their plea that during the period in question, the assessee has not manufactured any excisable goods. The findings recorded in paras 4 to 7 are reproduced below : 4. The AC has observed in the first order dt. 29-5-96 that the appellant themselves had a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the manufacture of dutiable excisable goods, they have given detailed written submissions wherein they stated that they had set up the new factory at MM Nagar registered with Central Excise on 24-10-94. They fired the furnace on 23-3-95 and intimated the department on 24-3-95. They also reported to the AC that they had started their production on 30-3-95 vide their reply to the AC s query dt. 5-6-95. The Range Superintendent had also verified and confirmed the same. They started their production on 30-3-95 with exempted goods and they continued the production of the same till 29-8-95 and started manufacturing dutiable items only with effect from 30-8-95. They also pleaded that they have not passed on the excise duty paid by them on culle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant here, since the appellant s factory is a new factory. It is not the AC s case that the appellant actually manufactured dutiable goods to start with and stopped the same briefly and then resumed manufacture of dutiable goods subsequently. In the absence of any evidence to the contrary, the AC could not deny the exemption for the relevant period is prior the date of commencement of manufacture of non-exempted goods. The AC s orders are therefore not correct and have to be set aside. The AC is directed to extend the benefit after due verification and sanction the refund in accordance with the provisions of section 11B. 7. In the light of the above discussions, both the appeals are allowed. 2. In this appeal the Revenue does not disput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... H. Dave, AC, Customs, reported in 1978 (2) E.L.T. (J 350) (f) Pratap Steel Rolling Mills v. CCE, reported in 1996 (87) E.L.T. 188 (g) Parle Products v. CCE reported in 1995 (80) E.L.T. 182 (h) Advance Paints Pvt. Ltd. v. CCE, reported in 1991 (53) E.L.T. 398 (i) CCE, v. Vikrant Tyres Ltd. reported in 1992 (58) E.L.T. 224 (j) Bama Metal Industries v. CCE, reported in 1996 (82) E.L.T. 81 3. We have heard both the sides in the matter and have given our consideration to the pleas made by both the sides. We have also perused the orders passed by the CCE (Appeals), which is extracted above. There is no dispute about the factual position that during the period in question, the refund has arisen as the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able thereon by any other notification (not being a notification where exemption from the whole of duty of excise is granted based upon the value or quantity of clearances made in a financial year) issued under sub-rule (1) of Rule 8 of the Central Excise Rules, 1944 or sub-section (1) of section 5A of the said Act. [Notification No. 89/95-C.E., dated 18-5-1995] 4. As can be seen from the proviso to the above Notification the Notification shall not apply to waste, parings and scrap cleared from a factory in which any other excisable goods other than exempted goods are also manufactured. The wording of the above Notification that during the relevant period the assessee should have manufactured only exempted goods and this provis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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