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TMI Blog2003 (4) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... otification No. 175/86-C.E. by Notification No. 244/87-C.E., dated 30-10-1987, they were asked to pay demand of duty short paid during the period from 30-10-87 to 31-3-88 as the units registered under the IDR Act with the Directorate General of Technical Development were no more eligible for the SSI benefit under Notification No. 175/86; that the Assistant Commissioner, under Order-in-Original No. 19/89 dated 29-3-89 denied the benefit of the Notification and confirmed the demand of Rs. 1,97,311.97p. He also mentioned that the Assistant Collector under Order-in-Original No. 54/91 dated 29-10-91 rejected their classification list effective from 1-4-91 claiming exemption under Notification No. 175/86; that a Show Cause Notice dated 1-9-91 was issued for demanding duty Rs. 1,54,929.71p. for the period from 1-4-91 to 25-7-91. 2.2 He, further, submitted that they filed a Writ Petition No. 6905/91 against the Order-in-Original No. 54/91 and the Show Cause Notice and the Rajasthan High Court, vide Order dated 23-1-92, directed the Assistant Collector to consider the eligibility for the Notification No. 175/86 for the period from 1-4-91 to 25-7-91 by taking into consideration para 4(b) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate mentioned that the Appellants appeal against Order-in-Original No. 19/89 was rejected by the Commissioner (Appeals); that on appeal the Tribunal remanded the matter vide Final Order No. 174/95-B1 to the Commissioner (Appeals); that now under the impugned order he has held that since they were holding out a licence under Rule 7 of the Registration and Licensing of Industrial Undertaking Rules, 1952, they are a factory registered under the IDR Act, that thus Commissioner (Appeals) has rejected their appeal. 4.2 The learned Advocate submitted that under Order-in-Original Nos. 23/93 and 63/93, the Assistant Collector had clearly held that they were not registered with DGTD which had not been challenged by the Collector in applications filed before the Commissioner (Appeals); that thus the said finding has become final and, therefore, the Commissioner (Appeals) was bound to apply the same principles in respect of the present proceedings also. He also contended that the Appellants had been granted industrial licence in terms of Section 11 of the IDR Act whereas the registration is required for existing undertakings in terms of Section 10 of the IDR Act; that as they were not exis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings as contained in the impugned order and contended that as they were registered under IDR Act with DGTD, they were not eligible for the benefit of exemption under Notification No. 175/86-CE, dated 1-3-1986. 6. We have considered the submissions of both the sides. Notification No. 175/86-CE provides exemption from payment of Central Excise duty to the goods manufactured by a small scale unit subject to the conditions stipulated in the Notification. One of such condition was contained in Para 4 of the Notification which reads as under :- 4. The exemption contained in this notification shall be applicable only to a factory which is an undertaking registered with the Director of Industries in any State or the Development Commissioner (Small Scale Industries) as a small scale industry under the provisions of the Industries (Development and Regulations) Act, 1951 (65 of 1951) : Provided that nothing contained in this paragraph shall be applicable - (a) In a case where the value of clearances from a factory during the preceding financial year or in the current financial year did not exceed or is not likely to exceed rupees seven and a half lakhs; or (b) In a case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation No. 174/89-CE, dated 1-9-89. Thus the said Proviso was not attracted in deciding the appeal against Order-in-Original No. 19/89. It is perhaps for this reason the Hon ble High Court of Rajasthan in its Order had clearly mentioned that ...so far as the dispute relates to the period prior to 1-9-89 the petitioner would avail the remedy which has already been availed of and no decision is given in respect thereof. The Commissioner (Appeals) thus has to decide the question as to whether the Appellants were a unit registered under IDR Act with DGRD or not. The Commissioner (Appeals) has recorded his findings on this aspect as under : The appellants claim is on the procedure defined in Section 10 for registration. These provisions provide for registration of a factory already in existence at the time the Act came into force. Section 11 of the IDA lists procedure for those factories, which came in existence after the commencement of the Act. Both the registration and the licensing have to be under the Rules framed under IDA. In Order-in-Original No. 19/89, the Assistant Collector had referred to the licence/registration held by them under Rule 7 of the Registration and Licensin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wrongly held that the assessee fulfilled the condition of proviso (b) to para 4 of the Notification No. 175/86-C.E., dated 1-3-86 as amended it cannot be claimed by the Appellants that the Assistant Collector s finding regarding their unit not being registered with DGTD was not challenged. This is also apparent from other ground of appeal. In ground No. III it is clearly averred that the Assistant Collector was not right in presuming the Order No. 19/89, dated 29-3-89 to be ineffective during the financial year, 1990-91 when that Order has not yet been set aside. Moreover, the Commissioner (Appeals) has also rightly observed on the same fact there could not be two different positions one holding that they were a unit registered with the DGTD and the other that the unit was other than a registered factory with the DGTD. We also observe from the impugned order that the Appellants had made an alternate submission before the Commissioner (Appeals) that if they were considered a unit registered with the DGTD, they would still be eligible for exemption in view of the proviso added to clause (b) vide Notification No. 174/89, dated 1-9-89 as their aggregate value of clearances in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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