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TMI Blog2016 (6) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in the aforesaid pronouncement. Accordingly, there is no error in the approach of the Tribunal which may warrant interference by this Court. - Decided against the revenue - CEA No. 2 of 2011 (O&M) - - - Dated:- 4-5-2016 - MR. AJAY KUMAR MITTAL AND MR. SHEKHER DHAWAN, JJ. For The Appellant : Mr. Kamal Sehgal, Advocate For The Respondent : Mr. Vikrant Kackria, Advocate AJAY KUMAR MITTAL, J. 1. This order shall dispose of CEA Nos. 2 and 4 of 2011 as according to learned counsel for the parties, the common questions of law and facts are involved therein. For brevity, the facts are being extracted from CEA No. 2 of 2011. 2. CEA No.2 of 2011 has been preferred by the revenue under Section 35G of the Central Excise Act, 1944 (in short the Act ) against the order dated 28.4.2010 (Annexure A-4) passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as the Tribunal ). The appeal was admitted for consideration of substantial questions of law as proposed in para 4 of the appeal which are as under:- i) Whether Tribunal has erred in law by not appreciating the language of the relevant subpara (iii) of para 2 of N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se goods which bear brand name of another person and are cleared on full payment of duty. 6. During the period in question, notification No. 8/2003-CE dated 1.3.2003 as amended was in force. It would be apposite to quote below relevant Clauses 3(a), 4 and Clause 1 of Table contained therein of the said notification which are essential for proper adjudication of the dispute between the parties. The said Clauses read thus:- 3. For the purposes of determining the aggregate value of clearances for home consumption, the following clearances shall not be taken into account, namely- (a) clearances bearing the brand name or trade name of another person, which are ineligible for the grant of this exemption in terms of paragraph 4. XX XX XX 4. The exemption contained in this notification shall not apply to specified goods bearing a brand name or trade name, whether registered or not, of another person..... Clause 1 of the table contained therein:- Sr. No. Value of clearances Rate of duty (1) (2) (3) 1. First clearances up to an aggre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings which read thus:- ....Taking into consideration the facts of the matter in Ramesh Food Products case and bearing in mind, the pre-condition for availing the benefit of the notification No. 175/86-CE dated 01.03.86, it is abundantly clear that the manufacturer thereunder was given clear option to choose between the two benefits, one under the notification and another under the Modvat Scheme and not to avail both the benefits simultaneously. That is not the case under Notification No. 8/2003-CE dated 01.03.2003. There is no such restriction imposed under the said notification. Rather plain read of Clauses 3, 3(a) and 4 of the said notification would disclose that the manufactures are not debarred from availing the benefit under the said notification in relation to the goods other than the goods which are excluded from the benefit of the said notification while simultaneously seeking to avail the benefit of Cenvat Credit or Modvat Credit in relation to such excluded goods provided they are cleared on payment of full duty. The notification being abundantly clear in this regard, in our considered opinion, the authorities below erred in applying the decision in Ramesh Food Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding of the Notification, in the light of the other paragraphs, brings into focus the overall scheme. It, inter alia, provides that the clearances bearing the brand name or trade name of third parties which are ineligible for grant of this exemption, for the purposes of determining aggregate value of clearances for home consumption, are not to be included. These Notifications also make it clear that the exemption contained therein is not to apply to the specified goods bearing a brand name or trade name, whether registered or not, of any person, except under certain circumstances specifically stipulated therein. The Notifications also clarify that for the purpose of these Notifications, where the goods manufactured by a manufacturer bear brand name or trade name (whether registered or not) of any manufacturer of trade, they shall not be deemed to have been manufactured by such other manufacturer or trade. Reading of the aforesaid provisions in the Notifications unambiguously points out that for the purposes of availing the benefit of Notification by an SSI Unit, the clearances for home consumption only are to be taken into consideration, except in those cases where it is clearly pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been overruled by a larger Bench of the Tribunal in Kamani Foods case , decided in the year 1995. (b) In view of the above, this Court was influenced by the fact that smaller Bench of the Tribunal, while giving the decision which was impugned before it, was bound to follow the judgment of the larger Bench as per the demands of judicial propriety. (c) In Kamani Foods case , the larger Bench of the Tribunal had noted its earlier Special Bench ruling in the case of Kharia Cement Works v. Collector of Central Excise 1989 (42) E.L.T. 696 (Tribunal) wherein it was held that Notification No. 175 of 1986 had to be read as a whole and sub-clauses (i) and (ii) had to be construed harmoniously. The case was, thus, confined to interplay between sub-clauses (i) and (ii) of clause (a) of para 1 of the Notification which reads as under:- In exercise of the powers conferred by sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 85/85- Central Excises, dated the 17th March, 1985, the Central Government hereby exempts the excisable goods of the description speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught to the notice of the Court. Other provisions of the notifications which have bearing on this issue were also not brought to the notice of the Court. In fact, as noted above, the Court was primarily influenced by the fact that Tribunal had relied upon its earlier decision in Faridabad Tools case without realising that same had already been overruled by a larger Bench of the Tribunal in Kamani Foods case . It would be pertinent to point out that the appeal was decided ex parte, i.e., in the absence of assessee who chose not to appear. As would be noted hereafter on this issue, it is the other clauses of the Notifications which provide a correct answer. 12. In view of the above, we find that the issue in the present appeals is governed by the ratio of the Supreme Court in Nebulae Health Care Ltd's case (supra) and the judgment in Ramesh Food Products case (supra) had been rightly distinguished by the Tribunal on the same lines as has been noticed by the Apex Court in the aforesaid pronouncement. Accordingly, there is no error in the approach of the Tribunal which may warrant interference by this Court. The questions of law as claimed are answered against the revenu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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