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TMI Blog2010 (4) TMI 934X X X X Extracts X X X X X X X X Extracts X X X X ..... ame. The conclusion that the notification in question in relation to the branded specified goods and simultaneous manufacture of non-branded specified goods even in a situation where Cenvat credit is sought to be availed in respect of the duty paid on the inputs utilised in the branded specified goods, whereas the SSI exemption is sought to be availed in relation to the other goods, finds support in the case of COMMISSIONER OF C. EX., HALDIA Versus SPRING KLEIN AQUA PVT. LTD. [2007 (9) TMI 169 - CESTAT, KOLKATA]. The demand of duty made while denying the benefit under the said notification cannot be sustained - appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... T 470 (CESTAT-Kolkata), Mepro Pharmaceuticals P. Ltd. v. CCE, Rajkot reported in 2009 (91) RLT 557 (CESTAT-Ahmd.), CCE, Coimbatore v. CRI Pumps (P) Ltd. reported in 2009 (91) RLT 929 (CESTAT-Chennai), Stanlek Engg. Pvt. Ltd. v. CCE, Mumbai-II reported in 2009 (240) E.L.T. 314 (Tri.) = 2009 (90) RLT 607 (CESTAT-Mumbai) and Nebulae Health Care Ltd. v. CC, Chennai reported in 2007 (78) RLT 74 (CESTAT-Chennai) that full exemption in terms of such notification is available in respect of the goods manufactured by an assessee under his own brand name even though Cenvat credit is availed in respect of the duty paid on the inputs utilised in the manufacture of those goods which bear brand name of another person and are cleared on full payment of duty. Drawing our attention to the decision in Ramesh Foods Products's case, it was submitted that the same was in relation to the exemption Notification no. 175/86-C.E., dated 1-3-86, which was in a totally different set of facts and on totally different grounds as well as different conditions attached to it. Being so, according to the ld. Advocate, the decision of the Apex Court in Ramesh Food Products can be of no help to decide the matters in ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of determining the aggregate value of the clearances of all excisable goods for home consumption, the clearances bearing the brand name or the trade name of another person, which are ineligible for the grant of exemption under the said notification in terms of Clause 4 thereof shall not be taken into account. The relevant portion of the Clause 4 of the Notification provides that the exemption contained in the notification would not apply to the specified goods bearing the brand name or trade name whether registered or not of another person. Clause 1 of the Table to the said notification, which deals with the subject of value of the clearances provided that, "first clearance upto an aggregate value not exceeding one hundred lakh rupees made on or after the first day of April in any financial year", shall be liable for nil rate of duty. 8. Perusal of the above provisions of the notification makes it abundantly clear that in case of specified goods bearing brand name or trade name, whether registered or not, of another person being manufactured by the assessee, the same would not be entitled to claim the benefit under the said notification. Clause 3A(b) specifically excludes such go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 1-3-86 and simultaneously sought to avail Modvat benefit in respect of Cadbury brand biscuits manufactured by it on job work basis. A show cause notice came to be issued to him for recovery of duty on the goods bearing Ramesh brand. When the matter came up before the Tribunal relaying upon the decision in the matter of Faridabad Tools Pvt. Ltd. v. CCE reported in 1993 (63) E.L.T. 759 (Tribunal), it was held that the similar issue was decided in favour of the assessee and, therefore, agreed with the decision of the Asstt. Collector, who had dropped the proceedings in favour of the assessee while setting aside the order passed by the Collector (Appeals). The matter was then carried before the Apex Court. The same was disposed of after taking note of the decision in the decision of the Larger Bench of the Tribunal in Kamani Foods v. CCE reported in 1995 (75) E.L.T. 202 (Tribunal). The Notification No. 175/86-C.E., have to be read as a whole and as noted rightly in Kharia Cement Works (supra), sub-clause (i) and (ii) have to be construed harmoniously. The exemption envisaged for the specified goods accrues to them through instrumentality of the manufacturer. The notification clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsideration the facts of the matter in Ramesh Food Products case and bearing in mind, the pre-condition for availing the benefit of the Notification no. 175/86-C.E., dated 1-3-86, it is abundantly clear that the manufacturer thereunder was given clear option to choose between the two benefits, one under the notification and another under the Modvat Scheme and not to avail both the benefits simultaneously. That is not the case under Notification No. 8/2003-C.E., dated 1-3-2003. There is no such restriction imposed under the said notification. Rather plain reading of Clauses 3, 3A and 4 of the said notification would disclose that the manufacturers are not debarred from availing the benefit under the said notification in relation to the goods other than the goods which are excluded from the benefit of the said notification while simultaneously seeking to avail the benefit of Cenvat credit or Modvat credit in relation to such excluded goods provided they are cleared on payment of full duty. The notification being abundantly clear in this regard, in our considered opinion, the Authorities below erred in applying the decision, in Ramesh Food Products to the cases in hand and to deny the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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