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2006 (4) TMI 134 - SC - Central ExciseWhether the appellant/assessee was entitled to the benefit of Notification No. 35/95-CE., dated 16-3-1995 as amended by Notifications No. 77/95-C.E., dated 3-4-1995; No. 81/95-C.E., dated 7-4-1995; No. 84/95-C.E., dated 18-5-1995 and No. 115/95-C.E., dated 3-11-1995? Held that:- The Tribunal did erred in refusing to hear the appellant only on the ground that the ground had not been raised earlier. Rule 10 was sufficiently widely framed to allow the Tribunal to do so. Having regard to the fact that the Tribunal was itself considering the issue on a contested hearing there was no reason why the appellant should have been shut out from pleading its case on the same basis. As far as the decision on merits is concerned, Serial No. 5 leaves no doubt in our mind that the yarn referred to in Col. 3 is double yarn. This is clear from the condition mentioned in Col. 5 namely that the yarn must be produced falling within Chapter 52, 54 and 55 of the Schedule to the Central Excise and Salt Act, 1944. The Tribunal has also considered the fact that unless double yarn was subjected to the processes mentioned in Col. 3 of the Notification, there was no question of the yarn being marketable. The proviso is limited to Serial Nos. l and 2 and does not affect Serial No. 5. The reasoning of the Tribunal, in our opinion, is unexceptionable. The appeal as far as the M/s. Devangere Cotton Mills Ltd. is concerned the same is allowed.
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