9911796707
TMI Blog2013 (10) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. 2. As per facts on record, the appellants are engaged in the manufacture of pharmaceutical products and were availing the benefit of exemption notification No. 08/2003-CE dated 1.3.03 during the financial year 2007-2008. In terms of said small scale exemption notification if the total clearance from the factory during preceding financial year exceeded Rs.4 crores, the benefit of notification is not available during the subsequent financial year. The dispute in the present appeal relates to computation of clearances during the financial year 2006-2007, depending upon which the appellants entitlement of small scale exemption No. 2007-2008 is to be adjudged. 3. Apart from manufacturing goods on its own the appellant was also manufacturi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry by one or more manufacturers, does not exceed rupees four hundred lakhs in the preceding financial year. 3 For the purposes of determining the first clearances upto an aggregate value not exceeding one hundred lakh rupees made on or after the 1st day of April in any financial year, mentioned against serial no. 1 of the said Table, the following clearances shall not be taken into account namely:- (a) clearances, which are exempt from the whole of the excise duty leviable thereon (other than an exemption based on quantity or value of clearances) under any other notification or on which no excise duty is payable for any other reason; (b) clearances bearing the brand name or trade name of another person, which are ineligible for the grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecified goods which are used as inputs for further manufacture of any specified goods within the factory of production of the specified goods; (d) clearances of strips of plastics used within the factory of production for weaving of fabrics or for manufacture of sacks or bags made of polymers of ethylene or propylene; (ii) in the Annexure , after serial No. (xx) and entries relating thereto, the following serial No. and entry shall be inserted, namely:- (xx-i) terry towels falling under Chapter 63 of the said First Schedule; A reading of the above referred provisions show that in terms of Para 2 (vii) exemption is not available if the aggregate value of the clearance of all excisable goods for home consumption exceed Rs.400 lakhs in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s exemption. Admittedly the branded goods in question are not eligible for grant of exemption as contained in 8/2003-CE. As such, the said clearances are not required to be taken into consideration for computing the total clearances of Rs.4 crores. The Revenue's argument that such branded medicaments are exempted in terms of Notification No. 4/06 cannot be appreciated inasmuch as the condition 3A(b) refers to the clearance of branded goods which are specifically excluded from the benefit of notification No. 8/2003. The fact that same are entitled to some other exemption notification will not change the complexion of the said provisions of (b) of para 3A of the notification. To hold so would amount to introduce a new condition or to change t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same is for the period April, 2007 to December, 2007 whereas the show cause notice was issued on 19.8.09. We agree with the learned advocate that appellant having been already issued a show cause notice on 9.4.09, for the demand of duty of Rs.3,16,245/- for the period January, 2008 to March, 2008, the department was aware of the facts and as such, by following the Honble Supreme Court decision in the case of Nizam Sugar Factory vs. CCE [2006 (197) ELT 465 (SC)], we are of the view that demand in the said case would also prima facie be barred by limitation. In view of the above, we dispense with the condition of pre-deposit of dues and penalties in both the case and allow the stay petitions accordingly. (pronounced in the open court on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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