TMI Blog2012 (10) TMI 583X X X X Extracts X X X X X X X X Extracts X X X X ..... re enjoying the benefit of said notification, the denial of benefit of the same to the appellant on the sole ground that a declaration was not filed, would not be justified. When the appellant is being treated as the service provider, he cannot be held to be a manufacturer liable to pay excise duty in which case and he cannot be expected to file a declaration. - waiver of pre deposit allowed. - E/3130/2009 - 933/2011-EX(PB) - Dated:- 22-9-2011 - Ms. Archana Wadhwa, Shri Mathew John, JJ. REPRESENTED BY : Shri M.H. Patil, Advocate, for the Appellant. Shri I. Baig, DR, for the Respondent. [Order per : Archana Wadhwa, Member (J) (for the Bench) (Oral)]. The prayer in the application is to dispense with the condition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, as a result of certain investigations conducted by the Revenue, a view was entertained that the activity of banding together of two, three or four soap cakes amount to manufacture in terms of provisions of Section 2(f) of Central Excise and by virtue of Note 6 to Chapter 34, the appellant was liable to pay Central Excise duty on the same. Accordingly, proceedings were initiated by way of issuance of show cause notice dated 24-11-08 raising demand of duty and proposing imposition of penalty. The said show cause notice culminated into impugned order passed by Commissioner. 3. Learned Advocate appearing for the appellant has raised various grounds like that the activity undertaken by the appellant does not amount to manufacture inasmuch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. No manufacturer located in the said area was paying duty of excise. However, the benefit of said notification stands denied by the lower authorities by observing as under : 60. The thrust of all these judgements is that for availing of the benefit of an exemption, all the attendant conditions need to be satisfied. In the present case, the noticee had claimed the benefit of Notification No. 50/2003-C.E., dated 10-6-2003. They have filed a declaration also. It was for them to see to it that all the conditions are fulfilled. The declaration has to be filed by giving ail particulars as required in the notification which they failed to do so. It was incumbent on their part to ensure that they have fulfilled all conditions before availi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld to be not entitled to the same on this sole ground itself. It has to be kept in mind that the notification in question is a general notification, which is the area based exemption notification and grants exemption to all the manufacturers/excisable units located in that particular area. When all other manufacturers located in that area were enjoying the benefit of said notification, the denial of benefit of the same to the appellant on the sole ground that a declaration was not filed, would not be justified. 7. We have to appreciate the fact that the declaration was not filed by the appellants because he got himself registered with the Service Tax department under the bona fide belief that he is required to discharge the Service Tax o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... modvat credit available in respect of inputs so utilised by him, even though no declaration under the provisions of modvat Rules was filed by him and no records were maintained. The reference in this regards may be made to the Hon ble Supreme Court decision in the case of Formica India Division v. C.C.E. as reported at [1995 (77) E.L.T. 511 (S.C.)]. 9. By applying the same principle to the facts of the present case, it is to be held that when the Revenue was itself treating the appellants as service Tax provider and was charging service tax on the same, subsequently change of view on the part of the Revenue making the appellant liable to pay the duty of excise, the benefit of notification should not be denied on the sole ground that appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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