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TMI Blog2003 (12) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... efit of the exemption and was clearing the goods in terms of the notification. Therefore, the finding of the lower authority is contrary to the appellant's option. The notification calls for specific opting out by a manufacturer. There was no requirement to opt in. In the present case, the assessee has also written to the department informing that it was wanting to avail the exemption notification. In the face of such opting in, there was no justification for interpreting the payment of duty on some goods as opting out. Moreover, the assessee has also explained his reason for clearing some goods on payment of duty at the beginning of the financial year; it required some time to compute the aggregate value of the clearances made during t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Coated Paper/Plastic Films. Such small scale manufacturers are entitled to exemption from Central Excise duty under Notification No. 1/93, dated 28-2-1993. However, that notification also contained a proviso which allowed a small scale unit to opt out of the exemption and to discharge duty on the goods manufactured by it at the normal rates. We extract that proviso below : "Notwithstanding the exemption contained in Paragraph 1 of this notification, a manufacturer shall have an option for not availing of the benefit of the exemption contained in said paragraph and to pay duty of excise at the rate applicable to the specified goods but for the exemption contained in the said Paragraph 1, subject to the condition that such manufacturer shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contested this finding before the lower authorities submitting that the bar under the proviso applied only to small scale units which opted out of the notification and not to units which had opted in. It was also pointed out that clearance of goods on payment of duty for a few days at the beginning of the financial year cannot be construed as opting out of the benefit of the notification. These submissions failed. Hence the appeal to the Tribunal. The Bangalore Bench has referred the issue to the Larger Bench because it was not noted that conflicting decisions [Prabhat Forging Works v. C.C.E., Chandigarh - 2002 (139) E.L.T. 720 and C.C.E., Coimbatore v. V.N.K. Textiles Paper Mills (P) Ltd. - 2002 (49) RLT 938] existed on the issue. 4. When ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee has also explained his reason for clearing some goods on payment of duty at the beginning of the financial year; it required some time to compute the aggregate value of the clearances made during the preceding financial year, so as to be sure that it had not exceeded the qualifying value limit during the preceding financial year. Thus, paying duty on the goods cleared during the opening days of the Financial Year was only erring in favour of the revenue and not foregoing an exemption. Such caution in an assessee cannot be turned against him. We find that a similar issue had come up before us in the case of C.C.E., Coimbatore v. Marutham Textiles (P) Ltd. and Others [2003 (153) E.L.T. 219 (Tri. - LB)] and we took the view that clearanc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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