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TMI Blog2018 (2) TMI 1609X X X X Extracts X X X X X X X X Extracts X X X X ..... fit of Notification in the ER-1 returns. Thus, the charge of mis-declaration is clearly established - the matter is remanded to the original adjudicating authority for redetermination of demand - appeal allowed by way of remand. - E/87/08 - A/85074/2018 - Dated:- 16-1-2018 - Mr. Ramesh Nair, Member (Judicial) And Mr. Raju, Member (Technical) Shri. A.B. Kulgod, Asst. Comm.(AR) - for Appellant None - for Respondent ORDER Per: Raju 1. This appeal has been filed by the Revenue against order of Commissioner (Appeals) setting aside the demand of Central Excise duty and imposition of penalty. 2. The respondent, M/s. Saino Engineering Pvt. Ltd. were galvanizing goods on job work basis. As per Chapter Note 4 of Chapter 73 of CETA, 1985, the process of galvanizing amount to manufacture. The respondents had claimed that: a) they had cleared branded goods to M/s. Reliance Infocomm Ltd. on which they have already discharged full duty liability. b) that out of remaining clearances, no excise duty is payable in respect of the goods received from the manufacturer for job work process under Notification No.214/86, 83/94 and Rule 4 (5) (a) of Cenvat Credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner in July 2005 and thereafter. The said declaration covered 81 consignments mentioned in the show-cause notice. He condoned the delay in filing of the said declaration as the goods covered in the said declaration were cleared from April 2004 onwards. He relied on the decision of the Hon ble Apex Court in the case of Mangalore Chemicals Fertilizers Ltd. - 1991 (55) ELT 437 (SC) and held that the declaration is a procedural requirement and therefore, he allowed the benefit. 3. Ld. AR argued that the Commissioner (Appeals) has relied on Board Circular No.59/88 dated 28/10/88 and 323/39/97-CX dated 14/07/1997. He argued that both these circulars are in respect of SSI exemption in case of manufacturer availing SSI benefits and also exporting goods. He argued that in the instant case the goods were cleared to Reliance Infocom Ltd. which is a domestic unit. The goods were not exported therefore, the said circulars are not applicable. He further relied on the decision of Hon ble Apex Court in the case of Ramesh Food Products - 2004 (174) ELT 310 (SC) to assert that it is not permissible for a manufacture to avail full exemption and also avail Cenvat Credit in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the scheme by applying for it in the prescribed manner. Ultimately the manufacturers have the choice of choosing one of the two concessions, i.e. either The Modvat Scheme or Notification 175/86. Further, there is no one to one correlation between the inputs and final products under Modvat Scheme. It would therefore not possible to allow the manufacturer to simultaneously avail Modvat for some products and avail full exemption for others under small-scale exemption scheme. 5.1 It is seen that the decision in case of Ramesh Foods Products (supra) was passed with reference to Notification No.175/86-CE. The same was considered by Hon ble Apex Court in case of Nebulai Health Care Ltd. - 2015 (325) ELT 431 (SC) in the context of Notification No.08/2003. The Hon ble Apex Court observed as follows: 18. We, thus, find that the Tribunal in the impugned decisions in both these appeals has decided the issue correctly. Admittedly, in respect of home production, the assessee had not availed the benefit of two options simultaneously as no Cenvat credit is claimed in respect of those goods. While doing so, the Tribunal has taken note of the judgment of this Court in Ramesh Food Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit for such goods without the benefit of modvat credit. The Notfn. also provided lesser benefit for further clearances in excess of the above aggregate value under both the options for higher slabs/aggregate value of clearances. In computing the aggregate value of clearances for the purposes of exemption under both the options, the notification did not require that the goods bearing brand name of third parties should be excluded. The following explanations, inter alia, governed computation of the above aggregate value for the Notfn. Explanation IV - For the purposes of this notification, where the specified goods manufactured by a manufacturer, are affixed with a brand name or trade name (registered or not) of another manufacturer or traders, such specified goods shall not, merely by reason of that fact, be deemed to have been manufactured by such other manufacturer or trader. 8.2 The above condition though present in the Notifications that replaced the scheme of duty benefit for SSI units contained in Notfn.175/86, value of such goods are specifically excluded from the computation of aggregate value in these Notfns. Clearances of goods bearing brand name of third p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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