Customs, Excise and Gold Tribunal - Bangalore
The Commissioner Of Central Excise vs Premier Mushroom Farms on 20 June, 2005
Equivalent citations: 2005(190)ELT511(TRI-BANG)
ORDER S.L. Peeran, Member (J)
1. Both these Revenue appeals arise from common OIA No. 8 & 9/2004-CE dated 26.02.2004. The Commissioner, in the impugned order, has upheld the assessee's contention that they are eligible to avail simultaneously the benefit of exemption Notification Nos. 02/95-CE dated 04.01.1995 read with 13/98-CE dated 2.6.98 on the ground that there is no b ar in either of the Notifications to avail the benefit simultaneously. He has noted that the assesses are operating under 100% EOU Scheme. They were clearing certain quantities of fresh mushrooms produced in their unit to DTA after obtaining the permission of the Development Commissioner, VEPZ on payment of duty at the applicable appropriate rate of duty by availing the benefit of exemption Notification Nos. 2/95-CE dated 4 .1.95 read with 13/98-CE dated 2.6.98 and the assesses were issued with Show Cause Notice on the ground that they are not eligible to avail the benefit of both the Notifications and hence the Additional Commissioner confirmed demands including interest and imposed penalty. The Commissioner (A) noted that the finished goods are produced wholly from the raw materials produced or manufactured in Indi aso as to avail the benefit of Notification No. 13/98-CE and are produced in a 100% EOU as to be eligible for the benefit under Notification No. 2/95-CE. There is no provision in both the Notifications that bars availment of the benefit of any other Notification. A reading of the Tribunal ruling rendered in the case of Chowgule Matrix Hobs Ltd., Bombay v. CC, Bombay, 1987 (31) ELT 736 (Tribunal) has been relied which held that two concessions or exemptions can be availed for same goods if not categorically barred. Reference was also made to the Tribunal ruling rendered in the case of German Remedies Ltd.v. CCE, Bombay, 1987 (28) ELT 144 (Tri.) wherein also similar ruling has been laid down. Reference was also made to Apex Court judgment rendered in the case of Hemraj Gordhandas v. H.H. Dave, ACC and Ors., 1978 ELT (J 350). Further reference was also made in t he judgment of La Mansion Granites Ltd. v. CCE, Hyderabad, 2003 (55) RLT 320 (CEGAT-Bang.) which laid down that Rule 173Q is n ot applicable to 100% EOU and imposition of penalty under the said Rule is not called for.
2. We have heard the learned SDR and the learned Counsel in the matter.
3. The Revenue's grievanc e is that the Commissioner's order granting the benefit of both the Notifications is not justified, as the Notifications are mutually exclusive in nature. Several pleas have been raised to support this submission.
4. On our careful consideration, we notice from the reading of the Notifications that there is no provision to bar the benefit of both the Notifications as held by the learned Commissioner (A). The learned Commissioner (A) has also seen the ratio of the Tribunal and the Supreme Court judgments to upheld the assessees' contention and in granting the benef it. A similar view was expressed by the Larger Bench in the case of Hindustan Lever Ltd. v. CCE, 1989 (40) ELT 388 (Tribunal) which held that when two exemption Notifications issued separately and independently then there is no bar to avail the benefit of more than one Notification. In view of the ruli ngs of the Tribunal holding that benefit of two Notifications can be granted wh en there is no specific bar, we are of the considered opinion that the order passed by the Commissioner (Appeals) is justified, legal and all the contentions raised in the appeal are academic in nature and not sustainable. The appeals are rejected.