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TMI Blog2015 (10) TMI 964X X X X Extracts X X X X X X X X Extracts X X X X ..... llant. In our considered view, the said clarifications of Circular: B-21/15/ 86-TRU, dated 3-4-1987 and Circular No. 46/90-CX.8, dated 11-7-1990 are not relevant. In the present circumstances, what is to be seen is M/s. VPL is a functional SSI unit and eligible for the benefit of Notification 175/86. - Decided against assessee. - Appeal No. E/2990 & 2991/05 - Mum - - - Dated:- 15-9-2015 - Shri P.K. Jain, Member (Technical) And Shri S. S. Garg, Member (Judicial) Shri C.S. Biradar, Advocate : For The Petitioner Shri N.N. Prabhudesai, Supdt. (AR) : For The Respondent ORDER Per: P.K. Jain: The brief facts of the case are that the appellants are engaged in the manufacture of medicines and availing the benefit of small scale exemption notification no. 175/86-CE. During the period March 1991 to August 1992, in addition to their own manufacturing, they also manufactured P P medicaments on behalf of M/s. Vellanova Pharmaceuticals Ltd. (VPL for short). The medicines manufactured were having the brand name of M/s. VPL. It was further claimed that the said M/s. VPL is a small scale unit and since the appellant were manufacturing the goods of another small scale unit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Board vide Circular no. 46/90-CX dated 11.07.1990, M/s. VPL would be eligible for getting the benefit of SSI Notification. Ld. counsel further submitted that once the clarification list is approved it is not open for the department to raise the demand as held by the Hon'ble Supreme Court and this Tribunal in the following cases: * Bhiwani Textile Mills 1996 (88) ELT 639 (SC) * Giridhara Supply Co. 1997 (94) ELT 14 (SC) * Project Technologists P. Ltd. 2003 (161) ELT 783 (T) * Laxmi Vishnu Dye Chem 2002 (142) ELT 611 (T) 3.1. Ld. counsels contention was that since the classification list was approved and M/s. VPL had the provisional SSI registration certificate which was later on converted into permanent SSI certificate, Revenue cannot demand the duty at this stage and therefore there is no question of any penalty. It was further submitted that the demand notice has invoked the extended period of limitation also which is not sustainable in view of the fact that the classification list was approved. 4. Ld. AR on the other hand, submitted that the contention of the appellant about the approval of the classification list is not valid in view of the fact that Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not claiming that M/s. VPL was a functional unit during the period under dispute. Ld. AR also submitted that the clarifications referred are relevant for the goods manufactured in SSI unit themselves and not to the goods which have been manufactured on their behalf in some other unit. In view of the said factual position, the appellant was not eligible for the benefit of Notification 175/86. Ld. AR further submitted that the Commissioner (Appeals) has already reduced the penalty substantially. He further submitted that approval of classification list has to be considered as non est in the eyes of law for the simple reason that the manufacturing unit was not in existence or capable of producing any goods at the relevant time. Moreover, such a crucial fact was intentionally and wilfully suppressed from the Revenue in the classification list. 5. We have considered the submissions made by both sides. The relevant provisions in Notification 175/86 is as under : 7. The exemption contained in the Notification shall not apply to the specified goods where a manufacturer affixes the specified goods with a brand name or trade name (registered or not) of another person who is not e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concession under notification 175/86-C.E., dated 1-3-1986. 2. The matter has been examined in the Board. It has been decided that the provisional registration from the State Government authorities could be accepted for the purpose of availment of duty concession under the aforesaid notification. Circular No. 46/90-CX.8, dated 11-7-1990 Doubts were raised whether : - (a) An assessee who was holding a provisional certificate but is denied permanent registration would still be entitled to exemption in terms of para 4(b) of Notification No. 175/86 and (b) With regard to point No.(a), the Conference felt that a provisional registration with SSI Directorate was no registration. For purposes of Notification No. 175/86, dated 1-3-1986 as amended, an SSI unit was required to be permanently registered. It was therefore recommended by the conference that an assessee whose provisional registration certificate was not converted into a permanent one, would not be eligible for the benefit available under Notification No. 175/86. The conference also felt that in both types of cases mentioned above, the assessment should be kept provisional and finalised only after cor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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