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TMI Blog2015 (9) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... ces, the Tribunal's view is that if there are Notifications and granting benefits to an assessee in force, availment under one which was more beneficial could not be said to be an illegal or erroneous act. This finding of the Tribunal is imminently possible and given the fact situation. We do not find that the Notification either is superseded or amended as claimed by the Revenue. In the circumstances, the finding of fact does not raise any substantial question of law - Decided against Revenue. - Central Excise Appeal No. 6 of 2014 - - - Dated:- 10-3-2015 - S.C. Dharmadhikari S.P. Deshmukh, JJ. For the Petitioner : Mr. Vijay Kantharia with Mr. Jitendra B. Mishra For the Respondent : Mr. Darius Shroff, senior counsel with Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d appropriate duty as per Notification No.8 of 1997 dated 1st August, 1997, as amended by Notification No. 13 of 1998 dated 2nd June, 1998. In terms of this Notification, hundred per cent export-oriented undertakings can clear the finished goods, rejected goods and waste and scrap etc. in domestic tariff area (DTA) which is manufactured wholly and of indigenous raw material. However, by the amendment parties like the assessee are required to pay excise duty equivalent to fifty per cent of the aggregate of customs duty leviable on like goods if imported into India. Mr. Kantharia submits there is a specific entry of fresh mushroom in customs under tariff sub-heading No.07.27, central excise duty as mentioned above is recoverable under Notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or scrap specified in the schedule to the Central Excise Tariff Act, produced or manufactured in hundred per cent export-oriented undertaking or a free trade zone wholly from the raw materials produced or manufactured in India, from so much of the duty of excise leviable under section 3 of the Central Excise Act as is in excess of the amount equivalent to fifty per cent of the aggregate of the duties of the customs which would be leviable under the Customs Act, 1962 or any other law for the time being in force. Mr. Shroff would submit that this Notification read with any other Notification is subject to the conditions mentioned therein. 5. Mr. Shroff would submit that the concurrent findings and which have been rendered specifically in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d out as to whether the exemption as claimed by the assessee under Notification No.8 of 1997 dated 1st March, 1997, as amended, is admissible or not. The Adjudicating Authority visited the factory of the assessee, studied the manufacturing process and obtained details thereof. The material that was produced before the Adjudicating Authority in the form of computerised statements indicated production of imported as well as indigenous spawn/mushrooms. There are separate records maintained and which have been perused by this authority. They revealed that whatever mushroom produced out of imported spawn in a separate growing room has been used / put into unit containers and ultimately the canned mushrooms have either been exported or cleared in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 1998, but that is not what has been pressed into service before us. What has been pressed into service is the allegation and in the show cause notice pertaining to the amendment to Notification No.8 of 1997 by a Notification No.13 of 1998. A perusal of the copy of the 1998 Notification does not reveal that it purports to or rather amends the earlier Notification No.8 of 1997. In the circumstances, the Tribunal's view is that if there are Notifications and granting benefits to an assessee in force, availment under one which was more beneficial could not be said to be an illegal or erroneous act. This finding of the Tribunal is imminently possible and given the fact situation. We do not find that the Notification either is superseded o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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