TMI Blog2012 (6) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... leared without accounting. If that be so, the aggregate value of such clearances under Notification No.180/1988 cannot be considered for the purpose of aggregate value of clearances made during the F.Y. 1989-90, which would mean that the appellant had not crossed the threshold limit of Rs.2 Crores for denying him the benefit of SSI Notification No.175/86-CE for the year 1990-91 - Decided in favor of assessee Whether the pat scrap was excisable to Excise duty - Held that:- Since adjudicating authority in his impugned order has not at all discussed how the duty liability on scrap arises if there is no manufacturing of scrap, hence, we remand the matter back to the adjudicating authority on this point to reconsider the issue afresh. - E/4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0) and, therefore, the appellant was not entitled to SSI exemption for the year 1990-91 in respect of ingots. Under the exemption Notification No.175/86-CE, concessional rate of duty was admissible provided the value of clearances in the previous year did not exceed Rs.2 crores. This reasoning of the Department was challenged by the appellant before the Tribunal. According to the appellant, vide Clause 3 of the Notification No.175/86-CE, dt.1.3.1986, a ceiling limit was imposed on the total value of clearances at Rs.2 Crores for the preceding financial year. However, under the proviso to Clause 3, clearances of goods with a brand name, was not to be taken into account in the computation of the ceiling limit of Rs.2 Crores. Under Explanation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the question as to whether the assessee was entitled to exemption Notification No.175/86-CE as also the question as to whether the pat scrap was excisable to Excise duty under the Central Excise Act, 1944. In deciding the last two points, the Tribunal shall ascertain whether there is record to indicate the volume and value of clearances. This last direction is given by us as to the appellant has been found guilty of clandestine removal. 3. Ld.Counsel appearing on behalf of the appellant-assessee would take us through the directions given by the Hon.Apex Court (as reproduced hereinabove). He would submit that the Tribunal vide its Final Order dt.30.10.01 at Para 11 held that the benefit of Notification No.180/1988-CE, dt.,13.5.88 as at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the adjudicating authority has held that MODVAT Credit was taken on the input used in the manufacture of final product removed clandestinely during the period. He would reiterate the finding of adjudicating authority. 6. We have considered the submissions made at length by both sides and perused the records. 7. We have also perused the order of Hon.Apex Court directing us to consider the 2 issues, wherein they had remanded the matter back to us. 8. We take up the matter issue wise. 9. As regards SSI exemption for the year 1990-1991, we find that the issue has to be considered from the angle of benefit of notification. The said Notification No.175/1986-CE specifically talks about the benefit to be given to SSI. In said not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,380.3 kgs of aluminum circles which is revealed in Annexure E to the Show Cause Notice. In the said Annexure E, there is also demand for clearance of scrap of 22,777.13 kgs for the same period. The total demand as per Annexure E comes to Rs.40,45,236/-. The main thrust of the argument of the ld.Counsel was as far as the insertion of the second proviso in the notification, the said proviso was added by Notification No.180/1988. Therefore, as far as the finding is wrong. As far as the period prior to the same is concerned, the case has to be reviewed from other angle. The item 10 reads as under: 10 76.06 Circles having thickness of and above 0.56 mm, but not above 2 mm. Nil If manufactured from goods, falling within Chapter 76 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared without accounting. If that be so, the aggregate value of such clearances under Notification No.180/1988 cannot be considered for the purpose of aggregate value of clearances made during the financial year 1989-90, which would mean that the appellant had not crossed the threshold limit of Rs.2 Crores for denying him the benefit of SSI Notification No.175/86-CE for the year 1990-91. That being the case, we hold that the duty liability calculated by the lower authorities in respect of the clearances made during the year 1990-91, needs to be re-quantified based upon this finding. For this limited purposes, we remit the matter back to lower authorities to re-quantify the demand for the period 1990-91, keeping in mind the findings recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X
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