Customs, Excise and Gold Tribunal - Tamil Nadu
Commissioner Of Central Excise, ... vs Kongu Karunambigi Textile Pvt. Ltd. And ... on 6 September, 2001
Equivalent citations: 2002(79)ECC127
JUDGMENT
S.L. Peeran
1. These are two appeals filed by Revenue against a common Order-in-Appeal No. 161 to 171/97 (CBE) (D) dated 13.5.97 passed by the Commissioner (Appeals), Trichy. The Commissioner has followed his earlier Order-in-Appeal No. 472 to 485/98 (CBE) (D) dated 25/6/96 by which the concession of the exemption of duty free clearances of value not exceeding Rs. 30 lakhs has been granted. He has noted that he is bound by the ratio of his earlier order. The findings recorded by the Ld.Commissioner (Appeals) in paras 6 to 9 of his order is reproduced herein below:-
6. I find that the same issue was considered earlier by my predecessor vide order-in-appeal No. 472 to 485/96 (CBE)(D) dated 25-6-96 relied on by the respondents. The extracts from the relevant para of the above order-in-appeal are reproduced below:-
".....The notification exempts specified goods cleared for home consumption on or after the 1st day of April in any financial year, in the case of first clearances of specified goods upto an aggregate value not exceeding Rs. 30 Lakhs from the whole of duty of excise leviable thereon. When a manufacturer claims this exemption he is entitled to duty free clearances of value not exceeding Rs. 30 Lakhs. The appellant herein has claimed this right on 23-5-94 in terms of classification list filed. The appellant has to be held eligible for duty free clearances, of Rs. 30 lakhs from 23-5-94 in view of para 2 of the said notification which would state that the value of clearance of specified goods under sub-clauses (a) (b) and (c) of opening paragraph shall not exceed Rs. 30 lakhs, 20 lakhs and 25 lakhs respectively. The clearances effected by the appellant on payment of tariff rate of duty prior to this dated 23-5-94 not being clearances under this notification (by availment of either total exemption or concessional rates under this notification) would be of no relevance except in the computation of aggregate value of clearances in a financial year."
"In the light of the above, the respondents are entitled to duty free clearances of Rs. 30 lakhs under Notification 1/93 from the date they start availing the same.
"Viewed thus, the applications do not survive and are rejected".
7. Though I am not bound by the above order-in-appeal, I find that I am in full agreement with the logic and reasoning adopted by my predecessor, and so I adopt the same to uphold the impugned orders here.
8. An amendment to No. 1/93 was introduced with effect from 1-4-94 wide notification No. 59-94-CE according to which it is for the manufacturer to exercise the option for not availing the benefit of the notification. In that event such manufacturer would have to pay duty at the rate applicable list for the aforesaid exemption on all the subsequent clearances. In the subject appeals, as pointed out by the respondents, it was not as if they had opted to pay duty on 25-4-94 or wanted to remain outside the notification inspite of the exemption being available to them. Such a presumption could be made only if cotton yearn was specified goods with effect from 1-4-94. But here, the notification 90/94 was issued only on 25-4-94. The only reason here was that they did not know about the exemption and as and when they came to known about it - which was on different dates they exercised the option for the exception and filed classification list and started availing the notification. In the circumstances, the respondents would be entitled to the clearance of duty free 30 lakhs under notification 1/93 from the dates they actually started availing the exemption. In the light of the above discussions, the case laws cited which are clearly distinguishable would not apply to the peculiar circumstances of this case.
Accordingly, there is no merit in the departmental appeals.
9. For the above reasons. I reject all the 11 departmental appeals.
2. Ld.DR Shri V. Sondararajan contends that the order is not proper and legal and requires to be set aside. He takes us through the grounds of appeal and the notification No. 1/93-CE dated 28.2.98 a amended by notification No. 90/94-CE dated 24.4.94 by which, the value of first clearance of specified goods in a financial year has to be taken into account for the purpose of determination of slab rate concessions. It is pleaded that for the purpose of computing Rs. 30 lakhs exemption limit, the clearances of cotton yarn from 25/5/94 to the date on which the cotton yarn became specified goods - should be taken into account -- not from the date of actual availment as held by the appellant authority.
3. Ld.Consultant Shri S. Kandaswamy refers to the cross objections filed that cotton yearn had become specified commodity and they are entitled to the SSI exemption. He further pleaded that they had opted out of the SSI scheme on 24.5.94 despite the availability/Knowledge of the exemption notification. He relies on the judgment of CCE Coimbatore v. S.K.TEXTILES PVT. LTD., of this Bench vide final order No. 343/01 dated 1.3.2001, by which the Revenue appeal on the same issue has been rejected. The Commissioner has again followed in the said case his earlier orders which are subject matter of the present appeal. He contends that this judgment of the Tribunal rendered in CCE v. S.M.TEXTILES PVT. LTD., cited above deals with the issue in question and the issue is no longer res integra and the appeal requires to be dismissed.
4. We have carefully considered the submissions made by both sides. We have perused the impugned order and also perused the final order No. 343/01 dated 1.3.01 passed in CCE Coimbatore v. S.M. Textiles Pvt.Ltd. by this Bench. We notice that this issue is no longer res integra and Revenue appeal has since been dismissed by holding that the Commissioner (Appeals) was justified in granting the benefit and the findings recorded by the Tribunal in para 3 & 4 of the above decision are extracted below:-
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 (sic) this Notification. It is contended that the lower appellate authority was right in holding that various clearances prior to 25.4.94 was includable when 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 become specified commodity on the 25.4.94 by virtue of the amending Notification the value of clearances of cotton yarn before this date have to be count for clearance 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 Financial 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 assessee opting for the benefit of the Notification and the aggregation, which is to be done, will have to be done 1; with reference to the operations as were carried out after he has opted for the benefit of the Notification. What happened before the appellants opted for the benefit of the Notification 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 cleances 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 clearances prior to the date of amendment an 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 R. 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 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. In view of the above reasonings given by the Tribunal which applies on all fours to the present case, we find no merit in these appeals and hence same are rejected.
(Pronounced & Dictated in Open Court)