9911796707
TMI Blog2002 (10) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... the manufacturer to pay excise duty at normal rate subject to the condition that the subsequent clearances effected by them during the financial year should suffer duty at normal rate and not at the concessional rate as such the assessee had no option to pay duty at normal rate in respect of one specified goods and concessional rate in respect of other specified goods. Further the manufacturer cannot simultaneously avail full exemption on certain goods to avail Modvat benefit on other goods by paying duty at a concessional rate. The assessee cannot avail SSI exemption in respect of certain specified goods cleared by them and pay the duty at full rate on certain other clearances. In this connection, Revenue relied on the decision of the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itches made up of iron and steel and plastics. He further submitted that they have not taken Modvat credit for the inputs used in the manufacture of final product viz. Switches which were cleared on concessional rate of duty under Notification No. 1/93 not for waste and scrap which were cleared by paying duty at the full effective rate. He further submitted that the judgments quoted by the Department in their grounds of appeal in the case of Kharia Cement Works v. CCE reported in 1989 (42) E.L.T. 696 was relating to the availment of Modvat credit facilities availed by one factory and full duty exemption was taken on first clearance up to Rs. 200 lakhs in respect of another factory of the same manufacturer. The facts are, therefore, not simi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d steel with effect from 11-5-96 though eligible for concessional rate could be treated as an option for not availing the benefit of the exemption as per Para 4 of the Notification 1/93-C.E. and if so whether it will apply to both the products i.e. switches and waste and scrap of iron and steel leviable to normal rate of duty. This is a fact that the appellants had cleared waste and scrap of iron and steel by paying the duty at the normal rate of duty i.e. at the rate of 15% ad valorem vide Invoice No. 78, dated 11-5-96 even though the concessional rate of duty under Notification 1/93-C.E. was applicable to them. Para 4 of Notification 1/93-C.E. which is relevant in this case reads as under : "Notwithstanding the exemption contained in Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion that the assessee had consciously opted to pay the duty on the clearances of the specified goods at the normal rate of duty and accordingly the assessee had to pay the duty at the full rate and all the subsequent clearances of the specified goods in the financial year. In other words, once the manufacturer had opted to pay the duty by not availing the concession under Notification No. 1/93-C.E., this option had to be applied to all the clearances of the specified goods and therefore the assessee had to pay the duty at the normal rate on the clearance of the switches also and he relied on the decision of the Tribunal in the case of M/s. Kharia Cements Works v. CCE. 1989 (42) E.L.T. 696 (T). 4. As regards duty liability on waste and sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the same manufacturer under Notification No. 175/86-C.E., dt. 1-3-86. This order of the Tribunal is not applicable to the facts of the present case. I, therefore, hold that the appellants are eligible for exemption under Notification No. 1/93-C.E. in respect of switches and in calculating the exemption limit the value of the waste and scrap of iron and steel cleared on payment of duty at the normal rate should be excluded. 5. In view of the above, I allow the appeal and set aside the order passed by the Assistant Commissioner of Central Excise, Coimbatore-II Division." 6. From the reasoning given by ld. Commissioner (Appeals) we do not find any infirmity in the order passed by the Commissioner (Appeals) which is legal and proper and w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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