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TMI Blog2002 (1) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... mption to three slabs, describing the rate of duty for each. In the case of first clearance of the goods "up to aggregate value not exceeding 30 lakhs" there is complete exemption from duty if the manufacturer does not avail of Modvat credit; in the case of clearance of an aggregate value not exceeding Rs. 20 lakhs of these clearance, the duty is exempted on goods to the extent 10% ad valorem, otherwise payable. In that case of further clearance not exceeding Rs. 25 lakhs the exemption is to the extent of 5% of the duty otherwise payable. This is the duty payable if the manufacturer does not avail of Modvat credit. 2. The notice issued to each of the assessees proceeded on the footing that "first clearances" referred to in Paragraph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the relevant time. He found that the textured yarn was entitled to the benefit of notification from 15-4-94 onwards. It however became entitled to the Modvat facility from 20-5-94 . He noted that the assessee therefore took the view that the benefit of the notification only became available to 20-5-94. Before this date, they could not resort to the exemption contained in Clause (a)(ii) of the notification which provided a concessional rate of duty in case the assessee avails of the Modvat benefit. He therefore said that the issue for decision is whether the department is entitled to include in calculating the aggregate value of clearance from 1-4-94 to 20-5-94 or whether it is only the clearance up to the date of filing the classificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regate value of clearance from 1-4-94, instead of 20-5-94 or after when the appellants claimed by way of Classification lists, was not in order and maintainable. However, the clearances made before 20-5-94 or full rate would be taken into account while computing the aggregate value of Rs. 2 crores for the entire financial year 1994-95 for SSI benefit purposes. Accordingly the impugned order mentioned in the enclosed annexure to this order are set aside and I allow these appeals." 5. The grounds in the department's appeal are that "the clearances in the present case are to be taken into consideration with effect from 1-4-94 only and not from date when the assessees filed the Classification list. The order passed by the lower authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arance from 1-4-94. The Commissioner (Appeals) has obviously misinformed himself about the Asstt. Commissioner order because he says that he included the clearance from 20-4-94, as the Asstt. Commissioner himself says it is clearance up to 25-4-94 that are to be excluded. 8. The Commissioner (Appeals)'s conclusion that, because the benefit of Modvat credit was not available prior to 20-5-94, the benefit of the exemption contained in the notification could not be availed of prior to this date is not, in our view, correct. It is necessary to examine this aspect in greater detail. Prior to its amendment on 20-5-94, Clause (1) of Paragraph 4, which relates to first clearance of Rs. 30 lakhs provided that in a case where the manufacturer avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pectively from the date of issue i.e. 25-4-94. It said however, in computing the aggregate value of clearance, since the notification refers to the first clearance it is the clearance from 1-4-94 that is to be included. This is the decision that the Departmental Representative relies upon. 10. The other decision is of the Chennai Bench of the Tribunal in CCE v. Selammal Spinners - 1998 (104) E.L.T. 685. In this decision, the Tribunal had applied the ratio of the decision of Watts Electronics v. CCE - 1994 (70) E.L.T. 127 and unreported decision in CCE v. Sri Kumaran Spinners has proceeded on the reasoning that cotton yarn became "specified goods" under the notification only on 25-4-94. Clearance of cotton yarn prior to this date is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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