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TMI Blog2002 (6) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... to give a finding on each of these issues. 4.A sum of Rs. 1,82,89,599/- was demanded on the ground that the unit could avail the benefit of exemption contained Notification 8/97 with regard to the grey fabrics cleared by it to the domestic tariff area. The Commissioner has concluded that this demand is not sustainable and dropped it and this is challenged in the department's appeal. Notification 8/97 exempts 'finished products, rejects or waste or scrap specified in the Schedule to the Central Excise Tariff Act, 1985 (5/1986) and produced or manufactured in a 100% export-oriented undertaking (EOU) or a free trade zone only from the raw material produced or manufactured in India and allowed to be sold in India in accordance with the provisions of sub-paragraphs (a), (b), (c), (d) and (f) of paragraph 9.9 or of paragraph 9.20 of the Export-Import Policy April 1997 - 31-3-2002' from so much of the duty as in excess of the amount equal to the duty leviable under Section 3 of the Act on like goods produced or manufactured and cleared by other than 100% export-oriented unit or free trade zone and cleared in India. In the course of manufacture of grey fabrics that it sold in the do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court that the Commissioner has cited themselves held that even consumable goods would be rightly classified as raw material and therefore the benefit of the exemption contained in the notification would not be available. It is further contended that 'as per Board's circular No. 389/22/98, dated 5-5-1998 benefit of Notification No. 8/97, dated 1-3-1997 cannot be extended to those units which manufacture goods out of both imported and indigenous raw materials. In the instant case imported raw material PVA is used in the manufacture of the unbleached cotton grey fabrics'. It is further contended that the doctrine of promissory estoppel would not apply because the demand for duty was for a period (22-4-1997 to 27-5-1997) prior to issue of the circular in question. 8.These arguments were repeated by the departmental representative. The Counsel for the assessee relies upon the Commissioner's reasoning and the evidence that he has considered and further contends that the Commissioner's finding that the PVA is in the nature of consumable goods is not questioned. 9.The judgment of the Supreme Court in Ballarpur Industries Ltd. v. CCE, in our view, has rightly been relied upon by the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts which 'manufacture out of both imported and indigenous raw material, the benefit is available to those units, which manufacture goods only from indigenous raw material.' With regard to the second situation, it said that the unit was eligible for the benefit of the notification 'even if imported consumables are used since the notification does not debar the use of the imported consumables'. From a reading of these clarifications together it would follow that the benefit of the notification would not apply to a unit making goods from indigenous and imported raw materials so long as the imported raw material was not a consumable. If it is a consumable since the notification does not debar the use of such consumable goods the benefit of the notification would be available. The contention in the appeal therefore ignores the part of the clarification which the Commissioner has relied upon. 11. The contention that the notification will not apply to earlier clearances again is unacceptable. Paragraph 3 of the notification requires the Commissioners to settle all pending disputes in the light of the clarification that prevails. This was pending before the Commissioner when the clarific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cepts as correct the finding of the Commissioner that the PVA is a consumable goods. These proceedings arise out of an order passed by the Board under Section 35E of the Act. It is therefore not permissible to go beyond the points raised in that order. The Board's order does not question the finding of the Commissioner that PVA is a consumable. That being so the application by the Commissioner of the contents of the Board's circular is proper and cannot be found fault with. 15. Appeals C/735 and E/2569 are by Ashima Fabrics against the portion of the order of the Commissioner in which he has confirmed part of the notice and demanded certain amounts. It is not clear why two appeals have been filed because the wordings of the appeal are identical in each case. Each of them is stated to be against the order contained in paragraph 53(iii), (v), (vi), (ix), (x), (xii) and (xiv). Counsel for the company explains that both the appeals were filed because part of the amounts have been confirmed under the excise and part under the Customs Act. We will take up each of these issues. 16.The Commissioner has demanded amounts which he finds payable as cess in terms of Textiles Committee Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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