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TMI Blog2015 (11) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee in its counter affidavit has simply taken the plea that once similar benefit was granted to the assessee in the earlier year it was not open to the Department to agitate the issue once again and in support of the submission the assessee has relied upon the judgment of this Court in Commissioner of Central Excise vs. Suntract Electronics Pvt. Ltd.[2002 (11) TMI 118 - SUPREME COURT OF INDIA]. For the reasons given, the aforesaid judgment would be no help to the assessee inasmuch as the earlier period was covered by different Notification - assessee is not entitled to exemption in terms of Notification No. 6/02-CE. The impugned decision of the Tribunal is, accordingly, set aside - Decided in favour of Revenue. - CIVIL APPEAL NO( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to whether the assessee's produce is 'agricultural produce'. The assessee is engaged in processing and export of Shrimps/Prawns. Show Cause Notice dated 17.11.2003 was issued to the assessee stating that it had used the refrigeration compressor for processing/storage of Shrimps/Prawns and since Shrimps/Prawns are not agricultural produce, the assessee had wrongly availed the benefit of the aforesaid Notification No. 6/2002-CE. The assessee filed its reply inter alia stating that such a benefit was given to the assessee on earlier occasion also and there was no reason not to continue the same in respect of the period in question. Accepting this contention the Adjudicating Authority dropped the show cause notice. However, fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dingly, the appeal filed by the department is allowed. The Order in Original No. 17/2004 dated 30.08.2004 is set aside. The assessee took the matter further by filing appeal before the Tribunal and the Tribunal has reversed the decision of the Commissioner(Appeals) holding that the assessee would be entitled to the aforesaid exemption Notification. In coming to this conclusion, the Tribunal has primarily gone by the following two reasons: a) The assessee was enjoying the benefit of exemption Notification in previous year and there was no reason not to continue the same; b) In the earlier proceedings, benefit of Notification No.19/1999 was extended to the assessee by the order of the Tribunal and the Revenue had accepted the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olutely correct in pointing out that whereas Notification No. 19/99 specifically covered the produce i.e. Shrimps/Prawns, present Notification confines the exemption only to agricultural produce, Shrimps/Prawns cannot be treated as agricultural produce. This aspect is highlighted by the Commissioner (Appeals) in his analysis, which is extracted above, and the assessee in its counter affidavit has simply taken the plea that once similar benefit was granted to the assessee in the earlier year it was not open to the Department to agitate the issue once again and in support of the submission the assessee has relied upon the judgment of this Court in Commissioner of Central Excise vs. Suntract Electronics Pvt. Ltd.[2003(156) ELT 163]. For the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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