TMI Blog2000 (10) TMI 863X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the appellants to show cause as to why the benefit of the said Notification be not denied for the period 25-4-1988 to 30-8-1988. On adjudication, classification list was approved after denying the benefit of the said Notification for the said period. 1.3 The appellants did not succeed before the lower appellate authority. Hence the Appeal before the lower Appellate authority. 2.1 Ld. Advocate, Shri K.K. Banerjee has urged that denial of benefit of S.S.I Exemption Notification on account of delay in granting the registration is not correct. Since the registration has ultimately been granted on 31-8-1988, the certificate should be related back to the date of application and at least from the date of commencement of production which is mentioned in the certificate of registration. 2.2 On the other hand, ld. JDR has submitted that plain reading of the Notification indicates that benefit of Notification 175/86-C.E. can be extended to the Unit which is registered with the Director of Industries or any other competent authority mentioned in para 4 of the said Notification. Date of registration is admittedly 31-8-1981. Therefore, no benefit prior to the date can be extended. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification No. 175/86-C.E. dated 1-3-1986. There is no dispute about the factual position consisting of date of application made to the Directorate of Industries for grant of Small-Scale Registration Certificate and the date on which the same was actually granted. The short question required to be decided is as to whether the S.S.I. Certificate which was granted to the appellants herein on 31-8-1988, would be applicable from the date of its issuance and the benefit under Notification No. 175/86-C.E. would flow to the appellants from that date or would be effective from and would relate back to the date of application made by the appellants or alternatively, from the date of commencement of production which has been shown on the Certificate as 29-4-1988. 6. Learned Member (Technical) has taken a view that since a plain reading of Notification No. 175/86-C.E. shows that the same is applicable to a factory which is registered with the competent authorities as S.S.I. Unit , the benefit cannot be given. I find that more or less a similar issue came up for consideration before the Honourable Supreme Court in a case under the U.P. Sales Tax Rules, 1948 reported as State of U.P. and Ano ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the application filed by the dealer for issue of a certificate. According to the High Court, the date of actual issue of the certificate should not be held to be material and that the benefit for the concessional rate of tax should be available to the dealer if the dealer, at the time of assessments hold, a recognition certificate in respect thereof . According to the High Court the language of Section 4B does support the extreme construction that the recognition certificate should be held at the time of the purchases themselves. 18. On a consideration of the matter we are persuaded in the view that the construction placed on the provision by the High Court is an eminently plausible one. There is nothing basically wrong in the approach of the High Court that the statutory language does not insist upon the contemporaneity of the holding of the certificate with the purchases and that it is sufficient if the dealer, subsequently, comes to hold certificate in respect thereof . It seems possible to say that to insist upon a contemporaneity of the purchases and the certificate would also amount to qualifying the word holds in the section by adding the words at the time of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as held that the dealers have to be considered as registered dealers with effect from the date of application and not from the date of grant of certificate. In that case, the application was filed on 14/16-2-1962 and the registration certificate was granted on 16-12-1962. It was observed in para 4 of the said Judgement that the petitioner was to be treated as a registered dealer with effect from 14/16-2-1962 and it cannot be said as an unregistered dealer nor can any penalty be imposed upon him. Though this case is under Sales Tax Act, nevertheless, the ratio laid down by the Honourable High Court is applicable. 9. I also take note of the Tribunal s Judgments in the case of Shri Gopal Cement Ltd v. C.C.E., Bhubneshwar reported in 1997 (18) RLT 591 and in the case of Sahuwala Cylinders Ltd. v. Collector of Central Excise reported in 1991 (54) E.L.T. 135]. In these two decisions, the benefit of Notification No. 175/86-C.E. was extended to the appellants on the ground that there was a clarification from the Directorate of Industries that though the registration certificate was issued at a later date, but the Unit was as an S.S.I. Unit from an anterior date. No such clarification was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (T)]. - The undermentioned difference of opinion between my learned brother Shri P.C. Jain, Hon ble Member (Technical) and learned sister Mrs. Archana Wadhwa, Hon ble Member (Judlcial) has been referred to me for my opinion as a Third Member : Whether the benefit of small scale Notification No. l75/86-C.E. would be available to the appellants from the date of production i.e. 29-4-1988 from the date of actual issuance of small scale registration certificate i.e. 31-8-1988. 13. As the facts of the case and the issue involved have already been clearly spelt out in the orders recorded by the said Members, I refrain from repeating or reiterating the same so as to avoid prolixity. 14. Advancing the arguments in favour of the appellants, Shri K.K. Banerjee, learned Advocate contends that the benefit of the said Notification is available either from the date of filing of application for Small Scale Industry (SSI) registration or from the date of commencement of production and not from the date of registration certificate. In support of his contention, the learned Advocate relies on the decisions of the tribunal in the following cases : (i) Indian Refrigeration Industries v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... difference of opinion was referred to a Third Member, he agreed with the view of Member (Judicial), and as per the majority view, the impugned order in that case was set aside and the appeal was allowed with consequential relief. The said order of the Tribunal was reported in 2000 (125) E.L.T. 974 (T) = 1999 (32) RLT 801 (CEGAT). As referred to by the learned Advocate, Tribunal have taken exactly the same view in the case of M/s. Aum Air Products Pvt. Ltd. v. C.C.E., Bombay - 1999 (35) RLT 120 (CEGAT) and M/s. Indian Refrigeration Industries v. C.C.E., New Delhi - 2000 (121) E.L.T. 174 (T) = 2000 (38) RLT 986 (CEGAT). The ratio of the said orders is applicable to the facts of the present case. Accordingly, in the facts and circumstances of the case on hand, I entirely agree with the view of learned Member (Judicial) that benefit of Notification No. 175/86-C.E. would be available to the appellants with effect from 29-4-1988 i.e. the date of commencement of production. 17. Registry shall initiate appropriate further action in the matter. Sd/-(S.N. Busi)Member (Technical) FINAL ORDER In view of the majority opinion, the benefit of Notification No. l75/86-C.E. wou ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
