9911796707
TMI Blog2003 (6) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... he factory premises now occupied by the Appellants; that M/s. Nirula Corner House Ltd. (NCHL in short) were discharging duty liability during 1998-99 without availing the benefit of Notification No. 8/98 as their aggregate value of clearances in the preceding financial year had exceeded Rs. 3 crores; that with effect from 22-8-1998, they commenced manufacture of ice-creams after taking over the premises under a lease agreement with M/s. NCHL and started availing of the benefit of exemption under Notification No. 8/98-C.E.; that four show cause notices had been issued to them for denying the benefit of the notification as condition Nos. (iv) and (vi) of Para 2 of the notification were not satisfied by them; that the Deputy Commissioner, unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (NCHL) cannot be taken into account for computing the clearances eligible for concessional rate of duty under the Notification. He emphasized that it is settled law that while computing the value of first clearances under SSI Exemption Notification/clearances effected on payment of duty at the Tariff rate are not to be taken into account. He relied upon the decision of the Tribunal in the case of Khalsa Pulp and Paper Industries v. CCE, Chandigarh, Final Order No. 313/90-C, dated 4-4-1990 which has been affirmed by the Supreme Court as reported in 1997 (92) E.L.T. A76. Reliance has also been placed on the decision in the case of Solar Packaging Pvt. Ltd. v. CCE, Rajkot, 1999 (30) RLT 867 (CEGAT). 4. He finally submitted that in any case t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factory of production for weaving of fabrics or for manufacture of sacks/bags made of polymer of ethylene or propylene. The learned SDR submitted that the Para 4 of the notification excludes only these clearances for the purpose of determining the aggregate value of clearances and the clearances of specified goods effected by M/s. NCHL during April, 1998 to 21-8-98 does not fall in any of the categories mentioned in Para 4 of the notification; that thus such value of clearances cannot be excluded for the purpose of determining the aggregate value of clearances for home consumption. He also mentioned that this issue stands settled by the decision of the Larger Bench of the Tribunal in the case of CCE, Coimbatore v. Maruthan Textiles (P) L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended to the notification. As per the Table (1) "first clearance up to an aggregate value not exceeding Rs. 50 lakhs" made on or after 2-6-98 in the financial year 1998-99 are exempted from the payment of whole of the duty and (2) "clearances up to an aggregate value not exceeding fifty lakh rupees immediately following the clearances specified against serial No. l during the financial year 1998-99 subject to the conditions specified in Para 2 of the notification. Condition No. 2(vi) provides that where the specified goods are cleared by one or more manufacturers from a factory, the exemption shall apply for the total value of clearances mentioned against each of the serial numbers in the Table and not separately for each manufacturers. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision in the case of EL. P. EM Industries which was followed in the case of Khalsa Pulp. However, the clearances effected by M/s. Nirula Corner House Ltd. from 1-4-1998 cannot be taken into consideration for determining the aggregate value of clearances in view of the fact that the first clearance has to be considered on or after 2-6-1998 as per Serial Number 1 of the Table. The value of clearances effected by M/s. NCHL with effect from 2-6-98 to 21-8-98 is to be taken into account for the purpose of determining the aggregate value of clearances for home consumption. 8. We agree with the learned Chartered Accountant that the price charged by the Appellants has to be treated as cum-duty-price and the assessable value has to be re-d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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