Customs, Excise and Gold Tribunal - Delhi
Commissioner Of Central Excise vs Chetna Engineering on 9 November, 1999
Equivalent citations: 2000(116)ELT91(TRI-DEL)
ORDER V.K. Agrawal, Member (T)
1. The issue involved in this appeal filed by Revenue is whether the benefit of Notification No. 175/86-CE., dated 1-3-1986 was available to the excisable goods cleared by the respondents during the financial year 1992-93 (from 1-4-1992 to 21-5-1992).
2. When the matter was called no one was present on behalf of the Respondents. They have, however, submitted written submissions and have requested to decide the appeal on the basis of cross objection filed by them as well as written submissions made by them. We, therefore, heard Shri R.K. Sharma, learned SDR, and perused the records. The Asstt. Collector had approved the classification list filed by the Respondents in which they had claimed the benefit of Notification No. 175/86, as amended. The appeal filed by the Department was rejected by the Collector (Appeals), under the impugned order, holding that the proviso inserted by Notification No. 55/92, dated 31-3-1992 in Notification No. 175/86 would affect only those manufacturers who had at some time in the past had availed of the benefit of Notification No. 175/86 in terms of Clause (a) of the proviso to para 4 and the eligibility to the benefit of Notification in terms of Clause (b) of proviso would not be affected merely on account of the fact that in the previous years, the value of clearances had exceeded Rs. 7.5 lakhs.
3. The Respondents have submitted that the authorization by Collector to file the appeal does not indicate that the impugned order is 'not legal or proper' which is a prerequisite under Section 35B(2) of the Central Excise Act and as such appeal filed by Revenue deserves to be rejected. Reliance has been placed on the decision in C.C.E., Vadodara v. Rohit Pulp Paper Mills, 1998 (101) E.L.T. 5 (S.C), C.C.E., Jaipur v. Shree Ram Rayons, 1999 (106) E.L.T. 225 (T), C.C.E., Madras v. Touch Wood, 1999 (106) E.L.T. 85 (T) and C.C.E., Chennai v. Enfield India Ltd., 1999 (34) RLT 340 (T). They have further submitted that they were availing SSI exemption under Notification No. 77/85, dated 17-3-1985 prior to 1-3-1986 and therefore, by virtue of Clause (b) of Proviso to para 4 they were eligible to the exemption from March, 1986 onwards; that they had all along availed exemption under Clause (b) and never claimed under Clause (a) of the first Proviso to para 4; that only those manufacturers, who had been availing of the exemption by virtue of Clause (a) of the first proviso, were debarred by amendment effected by Notification No. 55/92. They placed reliance on the decision in C.C.E, v. Bharat Automatics, 1999 (112) E.L.T. 387 (T) and C.C.E., Mumbai v. Assam Timbers, 1999 (112) E.L.T. 226 (T).
4. Shri R.K. Sharma, the learned SDR, submitted that the issue is covered by the decision of the Tribunal in the case of D.B. Shingodia v. C.C.E., Bombay, 1999 (32) RLT 477 (T), and C.C.E., Bombay v. Bamboat Press (P) Ltd., Final Order No. 750/98-C, dated 3-8-1998, and Duropolyprene (P) Ltd. v. C.C.E., 1998 (101) E.L.T. 475 (T).
5. We have considered the submissions of both the sides. The Respondents have contended that the authorization issued by Collector is not correct. Section 35B(2) of the Central Excise Act provides that the Commissioner may, if he is of opinion that an order passed by the Commissioner (Appeals) is not legal or proper, direct any Central Excise Officer to appeal on his behalf to the Appellate Tribunal against such order. The Commissioner has issued such an authorization which is on record. It is not required that the exact wordings of the provisions of Sub-section (2) to Section 35B of the Act have to be reproduced in the Authorization order. It has been held by the Tribunal in Standard Agro Engineers v. C.C., Mumbai, 1999 (84) ECR 811 that when the Collector makes the statement under the review order and he has signed it, it shows that he applied his mind with reference to the impugned order for filing an appeal. Even in Rohit Pulp Paper's case, the Hon'ble Supreme Court came to the conclusion that authorization was neither proper nor legal as the note sheet containing directions of the Collector was not produced before them. The Hon'ble Supreme Court in C.C.E. v. Berger Paints India, 1990 (47) E.L.T. 210 (S.C.) found the Authorization of the Collector to be proper after going through the Note in the file which was endorsed by the Collector and held that the language of the Section does not warrant a strained construction. As in the present matter, noting in the relevant file has not been called for, the Department's appeal cannot be rejected on the ground that authorization by the Collector was not proper.
6. The second proviso to paragraph 4 of the Notification No. 175/86 was substituted as under :-
"Provided further that nothing contained in Clause (b) of the proviso shall apply in a case where a manufacturer who is manufacturing specified goods in a factory has availed of the exemption in pursuance of Clause (a) of the said proviso in any of the preceding financial year."
7. It is apparent from this proviso that any unit, whose clearance of goods had exceeded Rs. 7.5 lakhs in any preceding financial year and was not registered as small scale unit, would not be eligible for the benefit of Notification No. 175/86, as amended. The Revenue has contended that the Respondents were not registered as a small scale unit with the Director of Industries and the value of clearance in the preceding financial year had exceeded Rs. 7.5 lakhs. These facts had neither been rebutted in the cross objection nor in the written submissions filed by the Respondents. In view of these facts, the Respondents are not eligible for exemption under Notification No. 175/86 in view of amendment effected by Notification No. 55/92. The same view has been taken by the Appellate Tribunal in the cases referred to above by the learned SDR. Accordingly the appeal filed by Revenue is allowed.