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TMI Blog2013 (11) TMI 848X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellants for recovering/reversing deemed modvat credit on the ground that (i) the Government of Indias order No. TS/36/94-TRU dated 1.3.94 was issued under the provisions of Rule 57G of CER, 1944 and the order itself has to be read with the provisions of Rule 57G; that the proviso 2 to Rule 57G has not in any manner relaxed the requirement of existence of documents evidencing payment of duty but has relaxed the requirement of production of such documents, (ii) that with effect from 01.03.94 chapter heading 72.30 and 73.27 were omitted from the CETA, 1985, therefore, there did not exist any documents evidencing the payment of duty on such re-rollable materials; that on account of omission of above chapter heading the inputs received were not coming under the purview of Notification No. 5/94-CE (NT) dated 01.03.94 issued under Rule 57A, (iii) the inputs received by the appellants had not suffered any Central Excise duty and therefore, the deemed credit was not available. 4. The adjudicating authority, relying on the Hon'ble Tribunal's Final Order No. C.I/233-332/wzb/CI dated 3.02.2003 and No. C-M/396-461/04/WZB/CI dated 27.07.2004 in the case of M/s. Vinubhai Steel Industries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered the submissions made by both sides and perusal of the case record. 10. Undisputed facts in this case is that the appellants herein are purchasing ingots and re-rollable materials of iron and steel from outside. It is also undisputed that the appellants herein eligible for benefit of exemption Notification No. 1/93-CE for the discharge of Central Excise Duty as a small scale industry as during the relevant period. The revenue authorities seek to reverse benefit of deemed credit as extended by CBEC order, TS/36/94-TRU dated 01.03.1994 only on the ground that appellants has turnover of more than 75 lakhs in a specific year. 11. We find that an identical issue was being considered by the Hon'ble High Court of H.P. in the case of Sood Steel Industries (P) Ltd. vs. Commissioner of Central Excise, we reproduce the entire judgment:- This Excise Reference was admitted on the following questions of Law : (1) Whether, in the facts and circumstances of the case, the Tribunal was right in interpreting the Notification dated 28-2-1993 and the Deemed Credit Order dated 1-3-1994 and in denying the benefit, which was claime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not avail of the benefit of Modvat credit then the exemption was from the whole of the duty of excise leviable thereon. (2) For the further clearances of Rs. 20,00,000/- following the above clearances of Rs. 30,00,000/-, the exemption was to the extent of 10% ad valorem subject to the condition that a minimum of 5% ad valorem duty was payable. (3) For the further clearances of Rs. 25,00,000 following the clearances of Rs. 50,00,000/- as above [Rs. 30,00,000/- in Clause (i) and Rs. 20,00,000/- in Clause (ii)], the exemption was to the extent of 5% ad valorem subject to the condition that a minimum of 5% ad valorem duty was payable. 5.No exemption was available to the aggregate value of clearances in excess of Rs. 75,00,000/- [Rs. 30,00,000/- in Clause (i) + Rs. 20,00,000/- in Clause (ii) + Rs. 25,00,000/- in Clause (iii)]. 6.While the extent of exemption was limited to the aggregate value of clearances not exceeding Rs. 75,00,000/-, no such exemption at all was available if the aggregate value of clearances of all excisable goods for home consumption had exceeded Rs. 2,00,00,000/- in the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 75 lacs. Admittedly, for the year in question, the petitioner was entitled to avail the benefit of the Notification No. 1/93-C.E., dated 28-2-1993. It is also not denied that the total clearances of the petitioner-company for the relevant year exceeded Rs. 75 lacs. A show cause notice was issued to the applicant whereby the petitioner was denied the benefit of deemed credit after crossing the exemption of limit of Rs. 75 lacs. The Deputy Commissioner, Excise confirmed the demand in view of the trade notice referred to above. The petitioner filed an appeal and the Commissioner allowed the appeal relying upon the decision of the Appellate Tribunal in the case of Collector of Central Excise, Coimbatore v. Sri Venkateswara Steel Industries - 1996 (86) E.L.T. 446 (Tribunal). This judgment of the Two Member Bench was reconsidered by a Three Member Bench of the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) in the Dagambar Foundary v. Commissioner of Central Excise, Allahabad 2000 (118) E.L.T. 85 (Tribunal-LB). 12.The Larger Bench held that any manufacturer whose clearances are over Rs. 75 lacs cannot be said to avail of the benefit of the Notification No. 1/93-C.E. and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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