Customs, Excise and Gold Tribunal - Tamil Nadu
Commissioner Of Central Excise, ... vs Swarnambigai Textiles And Ors. on 10 September, 2001
Equivalent citations: 2002(79)ECC207
JUDGMENT
S.L.Peeran, Member (Judicial)
1. These 10 Revenue appeals arises from common order-in-appeal No. 161 to 171/97 (CBE)(D) dated 13.5.1997 passed by Commissioner of Central Excise (Appeals), Trichy, holding that the appellants are entitled to the benefit of notification for Rs.30 lakhs with effect from various dates in May and June 1994 after obtaining approval from the lower authorities. He has noted that the Department initially took a view that the value of clearances made on payment of duty should be taken into consideration while computing the first clearances of Rs. 30 lakhs. However, after due consideration he has noted that the benefit would arise from the date of availing the benefit of the notification. He has followed the judgment of the Tribunal rendered in the case of WATTS Electronics Pvt. Ltd reported in 1994 (70) ELT 127. He has also applied the ratio of his earlier order in appeal No. 472 to 485/96 (CBE) (D) dated 25.6.1996 to uphold the assessee's contention.
2. We have heard Ld. DR Shri Soundarajan who points out that Commissioner was not justified in not upholding the Revenue's contention. The period which the duty was also paid should have been included to compute the amount of Rs.30 lakhs. The period cannot be computed from the date of availing duty. He relies on the Hon'ble Madhya Pradesh High Court's judgement rendered in the case of M/s. B.K. Rubber Industries Pvt. Ltd. as reported in 1993 (68) ELT 575. He contends that Commissioner was not justified in not following this ratio.
3. Shri S. Kuppusamy, Ld. Consultant appears for 5 of the above noted assessee. He contends that the Tribunal has clearly distinguished the Hon'ble Madhya Pradesh High Court's judgement which is not applicable to the facts of the case. He points out that the Tribunal has since followed the judgement rendered in the case of WATTS Electronics Pvt. Ltd. and confirmed the view expressed by the Commissioner in the order-in-appeal. He relies on the order of this Bench rendered in the case of CCE, Coimbatore v. Sri Theivasigamani Spinners by final order No. 3320/97 dated 25.11.1997. He points out that this order has again been followed by this Bench in the case of CCE, Coimbatore v. S.M. Textiles Pvt. Ltd. by final order No. 343/01 dated 1.3.01. He submits that the issue is no longer res integra and the Tribunal is required to follow the earlier orders.
4. On a careful consideration of both these submissions cited, we agree with the Ld. Consultant that the issue is no longer res integra. This Bench has followed the ratio of the judgement of WATT Electronics in the case cited by Ld. Consultant. The finding given by this Bench in CCE v.S.M. Textile Pvt. Ltd. by final order No. 343/01 dated 1.3.01. in para 3 & 4 are reproduced herein:
3. This is a Revenue Appeal against the above order of the Commissioner (Appeals). We have heard Shri Sree Kumar Menon, SDR for the Revenue and Shri K.K. Karunakaran Consultant, for the Respondents. It is contended by the Ld. DR for the Revenue that as per Notification No.1/93 dt. 28.2.93 as amended, value of clearances of specified good in a financial year have to be taken into account for the purpose of determination of slab rate concession under Notification. It is contended that the lower appellate authority was right in holding that various clearances prior to 25.494 was includable the cotton yarn became specified goods on 25.4.94 by amending the Notification of the even date. It is further contended that inasmuch as cotton yarn become specified commodity on the 25.4.94 by virtue of the amending Notification the value of clearances of cotton yarn of this date have to be (SIC) clarance of 30 lakhs value. Accordingly it is contended that the order the Commissioner (Appeals) cannot sustainable and the same accordingly to be set aside.
4. The Ld. Consultant for the Respondents, on the contrary, relied on the decision of the Tribunal in Final order No.3320/97 dt. 25.11.97 in the case of CCE v. Theivasigamani Spinners in which it is observed that the limit has set out in the Notification will come to play only in the event of the assessee opting for the benefit of the Notification and the aggregation, which is to be done, will have to be done with reference to the operations as were carried out after he has opted for the benefit of the Notification. What happened cannot be brought within the purview of the Notification inasmuch as the appellants were not operating at that time within the parameters of the notification as they were clearing the goods without availing of the benefit of the exemption Notification. The Tribunal accordingly observed that there was no legal sanction for aggregating the value of clearances made earlier for payment of full duty towards the aggregate value of the clearances for exemption purposes in terms of paras (a), (b) and (c) above. Reliance is further placed by the Ld. Consultant on the decision in the case of CCE. v. Sellammal Spinners reported in 1998 (104) ELT 685 (T). In this decision also, taking into consideration the earlier decisions on the same subject, it is observed that the clearances prior to the date of amendment clearance of the "unspecified goods" which cannot be logically/legally enter the foray of first clearances of 'specified goods'. It is further observed that the Notification exempts specified goods cleared for home consumption on or before 1st April in any financial year, in case of first clearance of specified goods up to an aggregate value not exceeding Rs.30 lakhs from the whole of duty of excise leviable thereon in terms of the tariff notification. Accordingly, the Tribunal held that the Respondents claim for seeking clearance of value from the date of Notification is fully justified and in that view of the matter we do not see any merit in this appeal. Adopting the ratio of the above said decisions of the Tribunal we see no ground to interfere with the order passed by the Commissioner (Appeals), the same is uphold and the appeal filed by the Revenue is rejected.
5. We notice that the above ratio clearly applies to the facts of the present case. Hence by applying the ratio thereof, the impugned order is confirmed and the appeals of the Revenue are dismissed.
(Order dictated and pronounced in the open court)