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TMI Blog2011 (1) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... 4/2011-WZB/AHD - Dated:- 24-1-2011 - Ms. Archana Wadhwa, Shri B.S.V. Murthy, JJ. REPRESENTED BY : S/Shri R.D. Wagley and Anand Nainawati, Advocates, for the Appellant. Shri Avinash Thete, SDR, for the Respondent. [Order per : B.S.V. Murthy, Member (T)]. Appellants are engaged in the manufacture of partially oriented yarn, Texturised yarn and draw twisted yarn falling under Chapter 54 of Central Excise Tariff Act, 1985. The appellants were claiming benefit of Serial No. 5(a) of exemption Notification No. 29/2004-C.E., dated 9-7-2004, as amended. Revenue has taken a view that appellant was not eligible for the benefit of this exemption notification and accordingly, impugned order has been passed whereby the demand for duty has been confirmed and penalty imposed under Rule 25 of Central Excise Rules and interest has been demanded under Section 11AB of the Central Excise Act, 1944. 2. Heard learned advocates for both the appellants and learned DR for the Revenue and have considered the submissions and also records of the case. 3. The relevant portion of the Notification No. 29/2004-C.E., as amended, which is the basis for the dispute is reproduced below :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the reactants are fed continuously to and the product is withdrawn continuously from a vessel or series of vessels. The polymerization is a process used to link small, simple, chemical molecules into a polymer. The process adopted by them is called direct spinning and they do not have the facility of polymerization. (iv) Generally, polymerization process has been known that it makes only chips for filament and fiber grade. They do not make chips but only buy and thereafter make POY by a direct spinning process. (v) As per the Explanation contained in the notification the facility for manufacture of yarn should be either out of polymerization process or chemical transformation process. 6. We find that the very same issue had come up for consideration before this Tribunal in the case of DNH Spinners v. C.C.E., Vapi - 2009 (242) E.L.T. 76 (Tri.-Ahmd.). In that case, the Tribunal had quoted the observations of the learned Commissioner in his order-in-original for coming to the conclusion that appellants were not eligible for exemptions and the Tribunal had reproduced the same. We find that similar observations have been made in this impugned order also. Hence observat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which are produced by (a) polymerization of organic monomers or (b) chemical transformation of natural organic polymers and they have the facilities in their factory (including plant and equipment) for the manufacture of filament yarns of Chapter 54, the assessee is not eligible for the benefit of Notification No. 29/2004-C.E., dated 9-7-2004 as amended by Notification No. 10/2005-C.E., dated 1-3-2005. 7. However, the appellants submitted that Tribunal while referring to the decision in the case of M/s. DNH Spinners, had not considered the decisions rendered by the Tribunal in the case of C.C.E., Chandigarh v. Indian Acrylic Limited - 2000 (122) E.L.T. 477 (Tribunal) and Swadeshi Polytex Limited 2005 (182) E.L.T. 326 (Tri.-Del.). It was submitted that in both these judgments the issue involved was about the benefit of notification and the language is similar to the notification involved in the DNH Spinner s Case. For the purpose, a chart of the notifications was produced, which is reproduced as under :- COMPARATIVE CHART Notification No. 29/2004-C.E., dated 9-7-2004 Notification No. 85/95-C.E., dated 18-5-1995 Notification No. 4/97-C.E., dated 1-3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of DNH Spinners case. However, the appellants submitted that Tribunal did not consider the two decisions stated above and have to be considered. On going through the comparative chart, it can be seen that a substantial part of all the three notifications are similar except for the Explanation provided in Notification No. 29/2004-C.E. which states that Manufacture of yarns means manufacture of filaments of organic polymers produced by (a) Polymerisation of organic Monomers such as .., or (b) Chemical transformation of natural organic polymers, wheras in Notification No. 85/95-C.E. and 4/97-C.E. the manufacturing of man-made filaments of organic polymers should be by polymerization of organic polymers or chemical transformation of natural organic polymers. Thus, the difference between the first and the second and third notifications is the method adopted for manufacture of organic polymers i.e. either by polymerization of organic monomers or polymerization of organic polymers. This precisely also was the subject matter of dispute in the cases relied upon by the appellant. On going through the judgments relied upon by the appellants viz. Indian acrylic Limited and Swadeshi Polytex L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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