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TMI Blog2009 (12) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... s, falling under Chapter 44 of the schedule to the Central Excise Tariff Act, 1985. Pursuant to the order passed by the Hon ble Allahabad High Court in writ-petition No. 27 of 1995 regarding amalgamation of M/s. Dinex Plywood (P) Ltd., Sitapur with the respondent-company, a declaration came to be filed on 1st April 1996 by the respondents opting to pay full rate of excise duty in relation to the unit at Sitapur while at the same time opting to avail exemption benefit under Notification No. 1/93-C.E., dated 28th February 1993 as amended in relation to the unit at Dehradun. Referring to the amendment to the said notification and alleging illegal availment of exemption benefit under the said notification in relation to only one unit and resultant contravention of the provision of Rule 9(1), 173F 173G of the Central Excise Rules, 1944, a show cause notice dated 30th October 1996 came to be issued to the respondents. The same was contested by the respondents, however, the Adjudicating Authority rejected the contentions sought to be raised on behalf of the respondents and confirmed the demand of Rs. 6,25,000/- as stated above. 3. Being aggrieved, the respondents carried the matter in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Del.) and Ceear Electronics v. CCE, Delhi-I reported in 2005 (187) E.L.T. 229 (Tri. - Del.) submitted that the point, which is sought to be raised in the matter, is fully covered by the said decisions and the same is answered in favour of the assessee. He further submitted that there is no bar for a manufacturer to opt for the benefit under the notification in relation to the one unit while not to avail such benefit in relation to the goods manufactured from another unit of the same manufacturer. There is no condition prescribed under the said notification imposing bar for such option. 6. The Notification 1/93-C.E. reads thus : Exemption to first clearances of specified goods upto the value of Rs. 30 lakhs and concessional duty thereafter in case of S.S.I. units having clearances not exceeding Rs. two crores in preceding year In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excises and Salt Act, 1944 (1 of 1944) (hereinafter referred to as the said Act), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the excisable goods of the description specified in the Annexure below and fall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the time being], as is equivalent to an amount calculated at the rate of 5 per cent ad valorem : Provided that the amount of duty of excise payable on the specified goods under item (i) of sub-clause (a), or sub-clause (b), or sub-clause (c), shall not be less than an amount calculated at the rate of 5 per cent ad valorem : Provided further that the aggregate value of clearances of the specified goods in terms of sub-clauses (a), (b) and (c) taken together, shall not exceed rupees seventy five lakhs. (2) a factory, other than a factory, - (a) which is specified in clause (1) of this paragraph, or (b) which is registered with Directorate General of Technical Development under the provisions of the Industries (Development and Regulation) Act, 1951 (65 of 1951), - in the case of first clearances of the specified goods upto an aggregate value not exceeding rupees ten lakhs from whole of the duty of excise leviable thereon. 2. The aggregate value of clearances of the specified goods for home consumption in a financial year - (a) by a manufacturer from one or more factories; or (b) from a factory by one or more manufacturers, - (i) under sub-clause ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 5A of the said Act, shall not be taken into account. Explanation III. - For the purpose of computing the aggregate value of clearances under paragraph 1, 2 or 3, the clearances of any excisable goods where a manufacturer affixes the specified goods with a brand name or a trade name (registered or not) of another person who is not eligible for the grant of exemption under this notification, shall not be taken into account. Explanation IV. - For the purposes of determining the value of clearances under this notification, in respect of Chinaware or Porcelainware or both, where a manufacturer gets such Chinaware or Porcelainware or both fired in a kiln belonging to or maintained by a Pottery Development Centre run by the Central Government or a State Government or by the Khadi and Village Industries Commission, the value of the Chinaware or Porcelainware or both, belonging to the said manufacturer and fired in such a kiln, shall be taken into account. Explanation V. - For the purpose of this notification, clearances for home consumption shall also include clearances for export to Bhutan or Nepal. Explanation VI. - Where any specified goods (hereinafter referred to as inpu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 73.17, 73.18, 73.19, 73.20, 73.21, 73.22, 73.23, 73.24, 73.26, 74.08, 74.12, 74.13, 74.14, 74.15, 74.16, 74.17, 74.18, or 74.19 of the said Schedule. (2) All goods falling under sub-heading No. 0901.20, 0901.90, (2) 0902.11, 0902.12, 0903.10, 5102.90, 5105.00, 5108.00, 5301.10, 5303.10, 5304.00, 5308.00, 5601.00, 5603.00, 5604.00, 5605.90, 5607.90, 5608.00, 5903,11, 5903.21, 5903.91, 5904.20, 5907.00, 5909.00, 6202.00, 6301.00, 7216.50, 7301.20, or 7302.90 of the said Schedule. (3) Rubber solution or vulcanizing solution; powered cycles and (3) powered cycle-rickshaws; side cars of motor cycles (including scooters); evaporative type of coolers and parts of such coolers and flat rolled products of iron or steel clad. (4) All other goods specified in the said Schedule other than the (4) following namely :- (i) all goods falling under Chapter 9, 24, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 72, 73 or 74; (ii) all goods falling under Heading No. 21.06, 25.04, 33.04, 33.05, 36.05, 37.01, 37.02, 37.05, 37.06, 40.05, 40.11, 40.13, 84.71, 85.21, 85.28, 87.01, 87.02, 87.03, 87.04, 87.05, 87.06, 87.11, 91.01, 91.02, or 96.13; (iii) all goods falling under sub-heading No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods for home consumption by a manufacturer from one or more factories or from any factory by one or more manufacturers exceeds Rs. 200 lakhs in the preceding financial year. The amendment by virtue of Notification No. 59 of 1994 clears that the manufacturer having opted for not availing the benefit of exemption and subjected himself to pay the duty at the rates specified under the Act would be liable to pay such duty in relation to all the subsequent clearances of the specified goods made after availing such option in a financial year. 9. Though it was strenuously argued on behalf of the appellants that Clause (ii) and (iii) to the Notification would clearly disclose that the option cannot be restricted to only one of the units owned by a manufacturer, Clause (iii) rather than lending any support to such contention, the same persuades us to take the view contrary to such submission. 10. Clause (iii) specifically provides that the aggregate value of clearances of all excisable goods from any factory by one or more manufacturers as well as from one or more factories by one manufacturer shall not exceed Rs. 200 lakhs in the preceding financial year as the same would disentitle the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the paragraph 1 of the notification, we fail to understand how the benefit under the said notification can be denied merely because the manufacturer owns more than one unit and opts for the benefit of the exemption only one unit. 12. As rightly submitted by the learned advocate for the respondents the issue in question was also considered by the Tribunal in Polyinks Pvt. Ltd., Munjal Gases and Ceear Electronics (supra) and it was held that the notification does not debar the assessee from availing exemption under the said notification in respect of goods manufactured from one unit while not availing same benefit in respect of same type of goods manufactured from another unit. 13. Considering the notification and amendment thereto and for the reasons stated above, we do not find any case having been made out to take a view different form the consistent view taken by this Tribunal all along in relation to the right of the manufacturer to opt for benefit under the notification in relation to one unit and at the same time not to opt for benefit under the said notification in relation to another unit. 14. The decision of the Tribunal in Buildmat (P) Ltd. case is on totally dif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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