Customs, Excise and Gold Tribunal - Delhi
C.C.E. vs Asclepius Pharmaceuticals Pvt. Ltd. on 6 January, 1997
Equivalent citations: 1999(114)ELT274(TRI-DEL)
ORDER
S.K. Bhatnagar, Vice President
1. These are three appeals filed by the Department against the Order-in-Appeal No. 462-CE/DLH/92, dated 9-9-1992 and Order-in-Appeal No. 544-545/CE/DLH/92, dated 22-10-1992 passed by Collector of Central Excise (Appeals), New Delhi.
2. Learned DR drew attention to the Order-in-Original and the impugned order of Collector (Appeals) and the grounds of appeal mentioned in the memorandum of appeal.
3. He stated that the appellants are engaged in the manufacture of P & P Medicines having a unit at Okhla, New Delhi. They had claimed the benefit of Notification No. 175/86, dated 1-3-1986 as amended inspite of the fact that they did not have a SSI registration certificate for their unit at Delhi. The A.C. denied them this benefit on the ground that the said benefit was available only to the units having a SSI registration certificate under the said notification.
4. The Collector (Appeals) however, allowed them the benefit subject to verification as, in his opinion, the respondents' case was covered by para 4(b) of the said notification. It was the Department's contention that since the party has no SSI certificate in respect of the premises at Okhla and they have not availed any SSI registration during the previous year for this factory at Okhla, therefore, they were not entitled to the benefit of notification and the benefit of para 4(b) could not be extended to them merely because the words used there are "where a manufacturer who is manufacturing specified goods in a factory" because the factory, after changing location does not remain the same.
5. The respondents had claimed that they had a factory at Jallandhar and had shifted it to Okhla, New Delhi and therefore, they were entitled to the benefit inspite of their not having a SSI registration certificate because they were availing of the benefit of one of the notifications at Jallandhar and this fact was verifiable as observed by the Collector (Appeals).
6. The Department was, however, not in agreement with this interpretation of the learned Collector (Appeals) because of the above reasons and there is nothing on record to show that their unit at Okhla continued to be a SSI unit in terms of this notification in the absence of the required certificate.
7. Learned Counsel drew attention to the impugned order-in-appeal and stated that the learned Collector (Appeals) has rightly drawn attention to the language used in para 4 of the notification and given the benefit in terms of para 4(b). It was his contention that this para takes care of three different situations - (1) where a unit is an undertaking registered with the Directorate of Industries or the Development Commissioner of Small Scale Industries under IDRA, (2) where it is not registered with the DGTD and (3) where the value of the clearances from the factory during the preceeding financial year or in the current financial year did not exceed or is not likely to exceed the prescribed limit.
8. In other words, if it does not exceed the prescribed limits whether in terms of aggregate value or the value indicated in para 4, then even if it was not registered with any of the authorities, it would be entitled.
9. It would also be entitled if it was a unit registered with the prescribed authorities but not registered with DGTD.
10. Thirdly, even where it was registered with the DGTD but did not exceed the prescribed limit in the previous financial year.
11. In the case of para 4(b), the Collector has rightly observed that the emphasis is on a manufacturer who is manufacturing specified goods and not on the factory. Therefore, if a manufacturer who was availing the benefit of specified notification in previous year had set up a unit which was other than a unit registered with the DGTD, he would be entitled to the benefit of the notification even if he had not obtained the SSI certificate from the authorities indicated in the main portion of the para. It was his submission that their case was covered by para 4(b) inasmuch as the respondents were a manufacturer who had a SSI registration unit from the prescribed authority, namely, Directorate of Industries, Punjab at Jallandhar and were availing the benefit. Hence, even for his Delhi unit, even though they did not obtain the certificate, he could claim the benefit of the notification and had been rightly allowed by the Collector (Appeals).
12. In support of his contention that in these circumstances, the benefit could be availed of, learned Counsel cited the following Tribunal's orders :-
(1) C.K. Suresh & Co. v. CCE reported in 1990 (49) E.L.T. 371 (Tribunal). (2) Accura Industries v. CCE reported in 1992 (58) E.L.T. 98 (Tribunal). (3) Mehta Gem Tools Pvt. Ltd. v. CCE reported in 1993 (63) E.L.T. 668 (Tribunal). (4) Mahaganapathy Engineering Works v. CCE reported in 1992 (62) E.L.T. 193 (Tribunal). (5) Vikram Laminators Pot. Ltd. v. CCE, Aurangabad reported in 1995 (79) E.L.T. 147 (Tribunal).
13. He further explained that in the case of Accura Industries (supra), the exemption notification was given even in case of wrong approval of classification list whereas in his case, there was no such situation and they had filed the classifiction list in the earlier factory as well as in this factory and had given all the declarations required for the purpose of claiming the benefit of this notification. It is noteworthy that in the case of Accura Industries (supra) also, the SSI registration certificate had been obtained for the manufacturer's unit at Andheri. It was subsequently sold out and no SSI certificate was obtained for their factory at Lower Parel. Inspite of it, the benefit was allowed because the manufacturer had availed the benefit for his Andheri unit. Therefore, on the same analogy, they were also entitled to the benefit of the notification.
14. Learned DR, in reply, reiterated the Department's view point as contained in the memorandum of appeal.
15. We have considered the above submissions. We observe that the learned Collector has allowed the benefit of the notification on the basis of his interpretation of para 4 of the notification subject to the verification ordered by him.
16. We also note that the learned Collector has rightly laid emphasis on the word 'manufacturer' used in para 4(b) thereof. We also note that in the notification read as a whole, there is different emphasis in different paragraphs and we have to distinguish the situations where the emphasis is on the factory or factories from the paragraphs or provisions where there is emphasis on the manufacturer.
17. While the ld. Counsel is correct in pointing out that the respondents had a unit in Jallandhar but now, they are having a unit at Okhla in New Delhi and this fact is not disputed. It is also true that the Department's contention that the respondents do not have a SSI registration certificate for Delhi unit is also not disputed. We also note that there is no dispute about any other condition prescribed in the notification including that of the aggregate value and the specified goods.
18. In these circumstances, apart from other cases, we find that it is the Tribunal's order in the case of Accura Industries (supra) which covers a similar situation inasmuch as it is an order relating to a manufacturer's unit which was earlier at Andheri but was sold out and subsequently, the benefit was allowed for their unit at Lower Parel even though they had not obtained the SSI registration certificate. We also note the learned Counsel's contention that it is not the Department's contention that they had exceeded the prescribed clearances limit.
19. In these circumstances, we feel that the learned Collector (Appeals)' order was right and there is no reason to interfere with the same. We, therefore, reject all the three Department's appeals which cover the same issue and uphold the Collector (Appeals)' order.