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TMI Blog2004 (2) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... . In their classification declaration effective from 1-4-99 they opted for the benefit of Notification No. 8/99 in respect of four different goods and in relation to remaining five goods they preferred to pay duty at Tariff rate and availed Modvat credit of duty paid on inputs used in or in relation to the manufacture of said five items. The Commissioner (Appeals) took the view that the appellant being SSI unit had to opt Notification No. 8/99 for exemption under value based clearance of all their final products as per Para (i) of the notification or pay normal rate of duty on all goods cleared by them as per Para (ii) and avail of Modvat in respect of all inputs used in or in relation to manufacture of all final products. The appellant cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by virtue of the declaration made in the said Finance Bill under the Provisional Collection of Taxes Act, 1931 (16 of 1931), the force of law, the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts clearances, specified in column (2) of the Table below, (hereinafter referred to as the said Table) for home consumption, of excisable goods of the description specified in the Annexure appended to this notification (hereinafter referred to as the specified goods), from so much of the aggregate of - (a) the duty of excise specified thereon in the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986); and (b) the special duty of excise specified thereon in the Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. v. CCE, Allahabad - 1999 (113) E.L.T. 613. (6) CCE, Nagpur v. Vidharbha Beverages - Final Order No. 857/98-B Affirmed by Supreme Court in 2001 (133) E.L.T. A172 (7) Dum Dum Metalloy Industries Pvt. Ltd. v. CCE, Calcutta III - 2001 (134) E.L.T. 171 (Tri. - Kolkata) 4.The learned DR, on the other, contended that the ratio of the decision in Faridabad Tools Pvt. Ltd. will not be of any help to the appellant herein. In the present case the appellant is wanting to work partly inside the notification and partly outside the same unlike in Faridabad Tools where under both options the assessee will be within the notification. It is also contended that in the light of provisions contained under Clause 2(iii) th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereon which is specified in the said Schedule (read with any relevant notification issued under sub-rule (1) of Rule 8 of the said Rules and in force for the time being) as is equivalent to an amount calculated at the rate of 10% ad valorem. (ii) in any other case from the whole of the duty of excise leviable thereon. Interpreting Clause (a)(i) Tribunal took the view that the benefit is available to individual specified goods, as set out in the notification. Clause (a)(i), therefore, has to be read only in the context of goods for which Modvat credit is availed and not for other goods. The same view was followed in Abhilash Rubber Products. It was held that so long as it can be shown that the inputs in respect of which Modvat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim exemption for the remaining two items. The relevant paragraph of the Notification which came up for consideration reads as follows :- "Notwithstanding the exemption contained in paragraph 1 of this notification a manufacturer shall have an option for not availing of the benefit of exemption contained in the 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 pay duty at the rate applicable but for aforesaid exemption on all subsequent clearances of specified goods made after availing such option, in a financial year on which such data of option falls." Following the ratio of Faridabad Tool ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here are two Notifications 8/99, which takes into its fold manufacturers not availing Modvat scheme and Notification 9/99 covering assessee's availing Modvat scheme. Therefore, when option is exercised in respect of some of the goods not to claim the benefit of Notification No. 8/99, to that extent the assessee goes out of the notification. We are not able to distinguish the present situation for the above reason as contended by the learned DR from the ratio of the earlier decisions. In the former notifications both categories were covered under the same notification but the effect of the option was the same. From the above discussion it comes out that the similar view taken by the Tribunal from Swaraj Paint Industries onwards has the appro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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