TMI Blog2004 (5) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... -4-2000 to 3-4-2000. 2. The appellants are engaged in the manufacture of excisable goods of Chapter 39 of the CETA Schedule, which are goods specified for SSI exemption under Notification No. 9/2003-C.E. During the period of dispute (1-4-1999 to 6-4-1999), the relevant notification granting SSI exemption in respect of the said goods was Notification No. 9/99-C.E. ibid. That notification came into effect on 1-4-1999 consequent to budgetary changes, replacing Notification No. 9/98-C.E. The essential conditions of Notification Nos. 9/98-C.E. and 9/99-C.E. were similar, and so was the position under Notification No. 9/2000-C.E. relevant to the period of dispute (1st to 3rd April, 2000) in the remaining appeal. Under these notifications, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s already made during the financial year, prior to the exercise of such option, shall be taken into account for computing the aggregate value of clearances, as specified in the said Table". 3. The appellants, admittedly, had not exercised their option strictly in terms of the above provision under the notification. They exercised such option in the prescribed manner only in the course of the month of April, 1999. The date of such exercise of option by the appellants in Appeal Nos. E/527/2003 and E/528/2003 was 7-4-1999. The authorities below have confirmed demands of duty against these 2 appellants for the period 1-4-1999 to 6-4-1999 on the ground that they had not exercised option for the said period in terms of Para 2 of the notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein a declaration filed by the assessee under Rule 173B on 6-4-1999 was accepted as substitute for exercise of option under Para 2 of Notification No. 9/99-C.E.; for the period 1-4-1999 to 30-6-1999. 6. Ld. DR has contested the above arguments and endeavoured to distinguish the cited case. He submits that the Rule 173B declaration filed with effect from 1-3-1999 did not serve any purpose beyond that financial year and that an option in terms of Para 2 of Notification No. 9/99-C.E. ibid should have been exercised in the manner prescribed in the said para for the period 1999-2000. This was not done by the appellants. According to ld. DR, the condition stipulated in Para 2 of the notification was a substantive requirement, rather than pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be, for any reason, adopted as substitute for exercise of option, under the relevant notifications, for the respective succeeding financial years. For instance, the declaration filed on 28-2-1999 by M/s. Sisir Enterprises under Rule 173B ceased to have effect on 31-3-1999 and was no substitute for exercise of option in terms of Para 2 of Notification No. 9/99-C.E. for a period commencing from 1-4-1999. In the result, the demand of duty for the periods prior to the actual dates of exercise of option under the relevant notifications have to be sustained. We, therefore, affirm the demands. 8. The penalty imposed on M/s. Sisir Enterprises in Appeal No. 526, however, cannot be sustained inasmuch as no mala fide intention has been brought o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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