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2002 (12) TMI 89 - SC - Central ExciseWhether the proviso to Section 11A of the Central Excise Act can be applied? Whether the benefit of Notification No. 85/85, dated March 17, 1985 can be availed by assessee? Held that:- A person from availing the benefit of exemption under the notification if clause (a) or clause (b) applies. Had the Revenue proceeded on the basis of facts which make out a case under Para 2 of the notification, extracted above, it would have been valid for the Tribunal to have recorded the finding which it did. The show cause notice, as noted above, did not proceed on the footing that the assessee did not disclose the fact of production of goods in two factories by the same manufacturer or in a factory by more manufacturers than one. The simple case of the Revenue was that by not disclosing the fact that M/s. Freyssinet Prestressed Concrete Co. Ltd. is a subsidiary of M/s. Gammon India Ltd. of which the assessee is a division, there has been a suppression of fact which entitled the Collector to invoke the proviso to Section 11A of the Central Excise Act. On this aspect, the finding recorded by the Tribunal is not in accord with the case of the Revenue. We are, therefore, of the view that it is not open to the Revenue to make out a new case for invoking the proviso to Section 11A of the Central Excise Act. Insofar as the appeals filed by the assessee are concerned, in view of the fact that the goods produced by the assessee, a division of M/s. Gammon India Ltd., and M/s. Freyssinet Prestressed Concrete Co. Ltd., a subsidiary of M/s. Gammon India Ltd., are for and on behalf of M/s. Gammon India Ltd., clubbling of the clearance of goods cannot be said to be illegal, having regard to the provisions of the aforesaid notification. The assessee cannot, therefore, avail the exemption under the notification. The appeals filed by the Revenue as well as the assessee are dismissed.
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