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TMI Blog2013 (3) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... ty exemption under the applicable small scale exemption Notification with regard to the same specified goods.” And dismiss the appeal. held that :- Since the Tribunal did not decide the issue in the light of law laid down in the Kamani Food v. Collector of Central Excise – [1994 (1) TMI 109 - CEGAT, NEW DELHI] hence, court consider it opposite to remand the case to the Tribunal for deciding the appeal of the appellant afresh on facts and then pass appropriate orders. The appeal thus succeeds and is allowed. The impugned order is set aside. - 2 of 2005 - - - Dated:- 26-6-2012 - Abhay Manohar Sapre and G. Minhajuddin, JJ. REPRESENTED BY : Smt. Smiti Sharma, Counsel, for the Appellant. Shri Sameer Oraon, Counsel, for the Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect of some other products. 2. We heard Shri D.N. Choudhary, learned Senior Departmental Representative for Revenue and Shri Bipin Garg, learned Advocate for the respondents. The issue involved has been settled by the Larger Bench of the Tribunal in the case of Franco Italian Co. Pvt. Ltd. v. CCE, Mumbai-II [2000 (120) E.L.T. 792 (Tri.-LB)] wherein it has been held that subject to the reversal of the MODVAT credit taken with regard to the inputs which were utilised for the manufacture of duty free goods, the manufacturer could avail of the MODVAT credit as well as full duty exemption under the applicable small scale exemption Notification with regard to the same specified goods. Following the ratio of the said decision we dismiss the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the Modvat credit on the other hand, could be availed for simultaneously by a manufacturer, but on different goods, has been confirmed by the Supreme Court by virtue of doctrine of merger. 9. It is not in dispute that this very issue at a later date came up for consideration before the Supreme Court in the case reported in Commissioner of Central Excise, Ahmedabad v. Ramesh Food Products reported in 2004 (174) E.L.T. 310 (S.C.) wherein, their Lordships noted that there were two views of the Tribunal on this very issue namely the one taken in Faridabad Tools case and the other taken in the case of Kamani Food v. Collector of Central Excise - 1995 (75) E.L.T. 202 (Tribunal). Their Lordships held that the view taken in Kamani is the cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w the law laid down in Ramesh Food i.e. Kamani s Food case. 12. In our opinion, since the Tribunal did not decide the issue in the light of law laid down in Ramesh Food i.e. in the light of the view taken in Kamani s case and hence, we consider it apposite to remand the case to the Tribunal for deciding the appeal of the appellant afresh on facts and then pass appropriate orders. 13. The appeal thus succeeds and is allowed. The impugned order is set aside. The appeal, out of which, this appeal arises is restored to its file. It be now decided afresh in the light of what we have held supra on merits in accordance with law, within six months from the date of parties appearance. Parties to appear before the Tribunal on 23-7-2012 and produc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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