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TMI Blog2019 (2) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit under Notification 38/97. It is also to be noted that the adjudicating authority for the period 1996 – 97 has excluded the value of ₹ 84,585/- and thus the turnover for the year 1996 – 97 which is the preceding financial year would be less than ₹ 300 lakhs. Therefore, the appellant in Unit II would be rightly eligible for notification 38/97 - The demand for this period which is ₹ 1,54,519/- is therefore set aside along with the penalties. However, since the appellant is not contesting the duty liability and the penalty for the period prior to 1997 – 98, in respect of Unit – II, the same does not require interference. Appeal allowed in part. - Appeal Nos. E/856/2003 and E/1144/2004 - Final Order Nos. 42811-42812 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant is not contesting the duty liability and undertakes to pay the same after adjusting the amounts already paid. It is his contention that the authorities below did not give the benefit of payment of reduced penalty of 25% of duty demand and he prayed that the said option may be extended to the appellant in Unit I. 4.2 In respect of Unit II, the ld. consultant submitted that they do not contest the duty liability for 1994 95, 1995 96 and also for 1996 97. It is argued by him that the demand for the period 1997 98 is not sustainable for the reason that for the previous year that is 1996 97, the turnover is less than ₹ 300 lakhs. Therefore, the appellant has rightly availed the SSI exemption provided in Notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... availed the SSI exemption as per Notification 38/97 and the findings of the adjudicating authority that the appellant has already availed SSI exemption under 1/93 and was availing MODVAT credit and therefore is not eligible for the SSI exemption is incorrect. He therefore pleaded that the demand in the case of Unit II for the period 1997 98 cannot sustain and the penalties imposed to the tune of ₹ 1,54,519/- also cannot sustain for the same reason. 5. The ld. AR Shri L. Nandakumar supported the findings in the impugned order. 6. Heard both sides. 7. The appellant is not contesting the duty liability in respect of Unit I and is requesting only the benefit of reduced penalty of 25% of the duty amount in Appeal No. E/1144/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efit of this notification, the goods already cleared during the financial year prior to the SSI notification, the option shall be taken into account for computing the aggregate value of clearances. When the notification was introduced only in 27.6.1997, the appellants have availed the benefit of notification and paid reduced duty. The authorities below have wrongly denied this notification stating that since the appellant has availed MODVAT credit and also because they have availed notification 1/93, in the financial year, they are not eligible for benefit of 38/97. After perusing the facts, we hold that the appellant is eligible for the SSI benefit under Notification 38/97. It is also to be noted that the adjudicating authority for the per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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