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TMI Blog2013 (5) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing a larger bench decision of the Tribunal reported in 2000 (118) ELT 85 especially when the same 1st Respondent-Tribunal in its decisions reported in 2002 (150) ELT 612 and the other Tribunal decisions reported in 2004 (171) ELT 462 (Mumbai-Tribunal), which are subsequent to the decision of the larger bench decision? Whether the decision of the same Tribunal rendered on the same issue, subsequent to the larger bench decision of the Tribunal is binding on the 1st Respondent-Tribunal? 3. Whether the Tribunal can go ahead with the appeal, when a Reference Case is pending on the same issue before this Hon'ble Court and whether the Tribunal has to wait for the decision of this Hon'ble Court in the same issue? 4. Whether the benefit of exemption/concession remains at Rs. 75 lakhs or extended up to Rs. 2 crores under the Notification No.1/93-CE dt. 28.2.93?" 2. Brief facts:- Appellant M/s.Ganesh Steels, Sankari are the manufacturer of re-rolling products falling under Chapter 72 and they availed MODVAT Credit for the inputs used in the manufacture of final products under Rule 57-A of erstwhile Central Excise Rules, 1944. Appellant also availed deemed credit at the rate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearances in the financial year had exceeded Rs. 75 lakhs and Appellant was not eligible for the benefit of Deemed Credit Order TS/36/94 TRU dated 01.03.1994 and rejected the appeal. 5. Mr.K.Jayachandran, learned counsel for Appellant submitted that Tribunal failed to appreciate that any SSI manufacturer who availed the benefit up to the given value limit i.e. Rs. 75 lakhs will continue to be categorised as one still availing and entitled to the benefits of the Notification even after the value limit is crossed. Contention of Appellant is that concession will be admissible for financial year 1994-95, if the aggregate value of clearances during the preceding financial year i.e. 1993-94 had not exceeded to Rs. 200 lakhs and the limit of Rs. 75 lakhs is prescribed for calculating the duty structure and not to roll out the Unit from the benefit of SSI Notification. Learned counsel for Appellant submitted that the Larger Bench decision in Digambar Foundary [2000 (118) E.L.T. 85] was considered by the Himachal Pradesh High Court in 2009 (241) E.L.T. 186 (H.P.) [Sood Steel Industrial (P) Limited v. Commissioner of Central Excise] and the Division Bench of Himachal Pradesh High Court hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.02.1993. 1.3 (a) - Exemption to first clearances of specified goods and concessional rate of duty for subsequent clearances. 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 falling under the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), (hereinafter referred to as the "specified goods") and cleared for home consumption on or after the 1st day of April in any financial year [by a manufacture, - (a) in the case of first clearances of the specified goods up to an aggregate value not exceeding rupees thirty lakhs - (i) in a case where a manufacturer avails of the credit of the duty paid on the inputs used in or for the manufacture f the specified goods cleared for home consumption under rule 57A of the Central Excise Rules, 1994 (hereinafter referred to as the said Rules), from so much of the duty of excise leviable thereon which is specified in the said Schedule (read w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - (i) by a manufacturer, from one or more factories, or (ii) from any factory, by one or more manufacturers. had exceeded rupees (three hundred lakhs) in the preceding financial year." 11. By careful reading of the Notification, it is seen that no exemption was available to the aggregate value of clearances in excess of Rs. 75 lakhs [Rs.30 lakhs in Clause (i) plus Rs. 20 lakhs in Clause (ii) plus Rs. 25 lakhs in Clause (iii)]. While the extent of exemption was limited to the aggregate value of clearances not exceeding Rs. 75 lakhs, no such exemption at all was available if the aggregate value of clearances of all excisable goods for home consumption had exceeded Rs. 200 lakhs in the preceding financial year. Thus a manufacturer whose total clearance in the previous year did not exceed Rs. 200 lakhs could get the benefit as provided in the Notification. 12. The Excise Ministry issued a Deemed Credit Order TS/36/94 TRU dated 01.03.1994 which reads as under:- "In exercise of the powers conferred under the second proviso to Rule 57G (2) of the Central Excise Rules, 1944 and in supersession of Order F.No.342/5/91-TRU, dated 7th July 1992 as amended the Central Government hereby dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /93-C.E. No doubt the benefits under this notification were limited to clearances of Rs. 75 lacs but this does not mean that manufacturers whose clearances exceeded Rs. 75 lacs were not availing the exemption under the notification. In our considered view, the only interpretation which can be given is that the wording used in the notification identifies the category of manufacturers who are satisfying the criteria as set out in Notification No.1/93-C/E. and are availing of the benefit of the said notification. The trade note limiting this benefit to those manufacturers whose clearances do not exceed Rs. 75 lacs is totally illegal and against the deemed credit order issued by the Ministry. We may also point out that though the department may be bound by its trade note, the industry is not bound by the same and has a right to challenge the same. 14. In view of the above, we hold that the Tribunal mis-interpreted the deemed credit order dated 1.3.1994 and the petitioner was entitled to avail benefit of the deemed credit order since he was availing benefit of the notification dated 28.2.1993. We also hold that the trade note No.81/94 dated 25.7.1994 cannot override the deemed credit o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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