TMI Blog2010 (10) TMI 463X X X X Extracts X X X X X X X X Extracts X X X X ..... and also on the question whether the rubber waste is an excisable product or not - Held that: these things needs to be re-considered by the Adjudicating Authority - Hence, remand the matter back to the Adjudicating Authority to re-consider the issue. - E/819/2008 - 1298/2010 - Dated:- 20-10-2010 - S/Shri M.V. Ravindran, P. Karthikeyan, JJ. REPRESENTED BY : Ms. Radha Arun, Advocate, for the Appellant. Shri K.S. Chandrasekar, JDR, for the Respondent. [Order per : M.V. Ravindran, Member (J)]. - This appeal is directed against Order-in-Appeal No. 38/2008 (H-I) C.E., dt. 31-7-2008. 2. The relevant facts that arise for consideration are that the appellants herein are manufacturers of Hawai Chappals having a brand name Paragon , Solid rubber tyres which are unconditionally exempt by Notification No. 3/2005-C.E. (Sl. No. 57) dt. 24-2-2005; during the manufacturing of items, rubber waste is generated which is also cleared as waste without payment of duty. It was noticed by the Revenue authorities that the appellants had not considered the value of the exempt goods i.e. Paragon brand hawai chappals for computing the aggregate value of clearances for the purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name of other person, and in terms of Notification No. 8/2003-C.E., the said value must be excluded as per para 3A of the said notification. It is also her submission that they have cited various case laws which were not considered by the ld. Commissioner (Appeals). It is her submission that basis for denial of exemption is incorrect inasmuch as the exemption granted to the product under different notification cannot be considered as out of the purview of SSI exemption notification. For this proposition, she relied upon the decision of the Tribunal in the case of Universal Electrical Industries v. CCE [1994 (70) E.L.T. 279 (Tri.)] which was confirmed by the Hon ble Supreme Court as reported at 2003 (153) E.L.T. 266 (S.C.). It is her submission that this case was of computation of aggregate value of clearances and the majority opinion of the Tribunal s decision supports her claim. It is her submission that they had correctly excluded the value of the clearances of Paragon brand Hawai chappals, since the goods bore the brand name of another person. It is her submission that para 4 of the notification stipulated that the exemption contained in Notification No. 8/2003-C.E. would not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds. 6. At the outset, we would like to record that the impugned order has set aside that part of the demand which has been confirmed by the Adjudicating Authority by invoking extended period of limitation. Both sides submit that they are not aware of any appeal having been filed by the Revenue against the said setting aside of the demand by the ld. Commissioner (Appeals). In the absence of any appeal being filed and brought to our notice, we hold that the impugned order to the extent it sets aside the demand by invoking first proviso to Section 11A of the Central Excise 1944 is correct and does not suffer from any infirmity. We also agree with the ld. Commissioner (Appeals) that the demand of duty needs to be re-quantified for the period of one year from the date of show cause notice and to that extent the remand order of the ld. Commissioner (Appeals) is also upheld. 7. As regards the merits of the case, we find that the undisputed facts are that the appellants have been availing benefit of Notification No. 8/2003-C.E. This notification is available to SSIs subject to fulfillment of the conditions enumerated therein. The bone of contention between the Revenue and the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny financial year. Nil 2. All clearances of the specified goods which are used as inputs for further manufacture of any specified goods within the factory of production of the specified goods. Nil 2. The exemption contained in this notification shall apply subject to the following conditions, namely :- (i) a manufacturer has the option not to avail the exemption contained in this notification and instead pay the normal rate of duty on the goods cleared by him. Such option shall be exercised before effecting his first clearances at the normal rate of duty. Such option shall not be withdrawn during the remaining part of the financial year; (ii) while exercising the option under condition (i), the manufacturer shall inform in writing to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise with a copy to the Superintendent of Central Excise giving the following particulars, namely :- (a) name and address of the manufacturer; (b) location/locations of factory/factories; (c) description of inputs used in manufacture of specified goods; (d) description of specified goods produced; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abrics or for manufacture of sacks or bags made of polymers of ethylene or propylene. 4. The exemption contained in this notification shall not apply to specified goods bearing a brand name or trade name, whether registered or not, of another person, except in the following cases ; (a) where the specified goods, being in the nature of components or parts of any machinery or equipment or appliances, are cleared for use as original equipment in the manufacture of the said machinery or equipment or appliances by following the procedure laid down in the Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001 : Provided that manufacturers, whose aggregate value of clearances of the specified goods for use as original equipment does not exceed rupees one hundred lakhs in the financial year 2002-2003 as calculated in the manner specified in paragraph 1, may submit a declaration regarding such use instead of following the procedure laid down in the said Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001; (b) where the specified goods bear a brand name or trade na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2003-C.E. It can be seen from the reading of the clause (b) of para 3A that the value of the clearances shall not be taken into consideration which are ineligible for the benefit of exemption under para 4, would indicate that all other values of the clearances of the goods having brand name of other persons would be includable for determination of aggregate value of excisable goods for home consumption. If that be so, the impugned order which holds this view cannot be faulted and seems to be in accordance and in consonance with the law. We do not find any infirmity in the said order on this point. 9. As regards the claim of the assessee that the value needs to be re-quantified by considering the cum-duty value and also eligibility to Cenvat Credit on the goods on which the demand of differential duty raised and also on the question whether the rubber waste is an excisable product or not, we agree with the first appellate authority that these things needs to be re-considered by the Adjudicating Authority. 10. Accordingly, we reject the appeal on merits to the extent challenged by the assessee and remand the matter back to the Adjudicating Authority to re-consider the issue as in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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