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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 ..... . The Tribunal mis-interpreted the deemed credit order dated 1-3-1994 and the assesse was entitled to avail benefit of the deemed credit order since he was availing benefit of the notification dated 28-2-1993 - the trade note No. 81/94 dated 25-7-1994 cannot override the deemed credit order and the said trade note is illegal – Decided in favour of Assessee. - Appeal No. E/216, 231 & 47/2006-DB - - - Dated:- 19-9-2013 - Mr. M.V. Ravindran and Mr. H.K. Thakur, JJ. For the Appellant : Sh. S.J. Vyas (Adv.) For the Respondent: Sh. P.N. Sarvaiya (A.R.) JUDGEMENT Per : Mr. M.V. Ravindran; All these three appeals raised the same question hence are being disposed of by a common order. It also transpires that these three appeals are filed against very same impugned order. 2. The facts of the case in brief are that the appellants were engaged in the manufacture of rolled products of iron and steel i.e. CTD bars/rounds/road etc falling under Chapter 72 of the First Schedule to the CETA, 1985. the appellants were availing deemed credit @ Rs. 920/- per MT on ingots and re-rollable materials obtained from the breaking of ship, boats and floating vessels, falling unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on or after first day of April-1994 as they are all availing benefit of SSI exemption under Notification No. 1/93-CE and could not availed the benefit of demand credit only after the clearance of 75 lakhs. 7. Ld. counsel would submit that though the adjudicating authority and the first appellate authority have relied upon the decision of the Larger Bench it is no more a good law, as Hon ble High Court of Himachal Pradesh in the case of Sood Steel Industries (P) Ltd. vs. Commissioner of Central Excise [2009 (241) E.L.T. 186 (H.P.)] on the very same issue held in favour of the assessee. It is his submission that Hon ble High Court of Punjab and Haryana in the case of M/s. Vishal Steel Rolling Mills Ors. Vs. Commissioner of Central Excise, Chandigarh [2010 (257) ELT 53 (P H) and Hon ble High Court of Karnataka in the case of Pashupati Steels Vs. Commissioner of Central Excise, Bangalore [2012 (278) E.L.T 59 (Kar.) following the judgment of Sood Steel Industries Ltd. has allowed the benefit of deemed credit to the assessee. 8. Ld. departmental representative on the other hand would submit that the judgment of the Larger Bench is very clear and against the assessee. It is also h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enjoyed full/concessional/slab exemption from the payment of Central Excise Duty subject to the various conditions and limitations as provided in that exemption Notification. The exemption under that Notification was not available if the aggregate value of clearances of all excisable goods for home consumption (a) by a manufacturer from one or more factories or (b) from any factory by one or more manufacturers, had exceeded Rs. 2,00,00,000/- in the preceding financial year. 4.A bare perusal of this notification shows that benefit of this notification was only available to such units whose total clearances in the preceding financial year did not exceed Rs. 2 crores. The effect of the notification may be summarized as follows :- (1) In the case of first clearances of the specified goods upto an aggregate value not exceeding Rs. 30,00,000/-. (a) manufacturer avails of the benefit of Modvat credit, then the exemption was to the extent of 10% ad valorem subject to the condition that a minimum of 5% ad valorem duty was payable. (b) If the manufacturer did not avail of the benefit of Modvat credit then the exemption was from the whole of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or after the 1st day of April, 1994 with the re-rollers, availing of the exemption under Notification No. 1/93-Central Excise dated the 28 February, 1993 will be deemed to have paid duty and the credit of duty under Rule 57G of the said Rules in respect of such ingots and re-rollable material used without undergoing the process of melting, in the manufacture of goods falling under Chapter 72 and 73 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), may be allowed at the rate of Rs. 920/- per tonne, without production of documents evidencing the payment of duty. This order shall come into force on 1st day of April, 1994. 11.Thereafter, the Chandigarh Collectorate issued a trade notice on 25-7-1994 whereby the trade and all persons concerned were informed that the benefit of deemed credit on re-rollable material and ingots as provided in the deemed credit order was not admissible to the re-rolling units whose value of clearances was in excess of Rs. 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-c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it 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 order and the said trade note is illegal. All the questions are answered accordingly. It can be seen from the above reproduced entire judgment of Hon ble High Court, the issue is now squarely covered in the favour of the assessee. We also find that the Hon ble High Court of Punjab Haryana and Karnataka have followed the said decision of the Hon ble High Court of Himachal Pradesh and extended the benefit of deemed credit to the assessee who cross the turnover of 75 lakhs. Since in the case in hand it is not disputed that the appellants are f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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