TMI Blog2013 (5) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... imit is crossed and also the same has not crossed the value of clearance of ₹ 200 lakhs during the preceding financial year and availed full exemption under Notification No.1/93-CE and thereafter started paying duty. Therefore, Appellant cannot said to be not availing exemption under Notification. The Deputy Commissioner had recorded factual finding that the Appellant satisfied the conditions Notification No.1/93-CE and Ministry's Deemed Credit Order TS/36/94 TRU and applying the ratio laid down by the Division Bench of Himachal Pradesh High Court in Sood Steel Industrial (P) Limited v. Commissioner of Central Excise [2009 (4) TMI-62]. Thus, the order of Tribunal cannot be sustained. Appeal is allowed. - Civil Miscellaneous Appeal No.1715 of 2005 - - - Dated:- 26-2-2013 - R. Banumathi And K. Ravichandrabaabu,JJ. For the Appellant : Mr. K. Jayachandran For the Respondent : Mr. V. Sundareswaran JUDGMENT Whether Appellant is entitled to Deemed Credit under Notification No.01/93-Central Excise dated 28.02.1993 and Ministry's Order in TS/36/94-TRU dated 01.03.1994, even after the Appellant Unit crossed the value of clearances of ₹ 75 lakhs is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t March, 1995 should not be denied and recovered under Rule 57 (1) of Central Excise Rules, if they have utilised already and why a penalty should not be imposed on them under Rule 173Q of Central Excise Rules. Appellant had sent its reply on 03.07.1995 stating that they were the manufacturers of re-rolled products of iron and steel which are falling under Chapter 72 and that they are Small Scale Unit availing exemption under Notification No.1/93-CE dated 28.02.1993 and that they have fulfilled all the conditions stipulated in the Board's order and as per the Board's Order No.TS/36/94/TRU dated 01.03.1994, Deemed Credit would be available to all those Units availing the exemption under Notification dated 28.2.1993 irrespective of whether the value of their clearance has exceeded the limit of ₹ 75 lakhs or not and requested the authority for dropping the case. 4. Upon consideration of the show cause notice and the reply, the Assistant Commissioner of Central Excise, Erode Division held that the party were eligible for the Deemed Credit availed during 1994-95 and ordered dropping of further proceedings of show cause notice dated 13.6.1995. Aggrieved by the said order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions made by both sides. 8. As per Ministry's Deemed Credit Order TS/36/94 TRU dated 01.03.1994, the ingots and re-rollable materials of iron or steel purchased from out side and lying in stock on or after 1st April, 1994 with the re-rollers availing of the exemption under Notification No.1/93-CE dated 28.02.1993 will be deemed to have paid duty and the credit of duty under Rule 57A of Central Excise Rules in respect of such ingots and re-rollable materials used without undergoing the process of melting in the manufacture of goods falling under Chapter 72 or 73 of the schedule to the Central Excise Tariff Act, 1985. Case of Appellant is that they have not crossed the limit of ₹ 200 lakhs and they were SSI Unit availing exemption under Notification No.1/93-CE dated 28.02.1993 and that they have fulfilled all the conditions stipulated in the Board's Order dated 01.03.1994, 9. Under Notification No.1/93-CE dated 28.02.1993, the specified goods up to the aggregate value of clearances not exceeding ₹ 75 lakhs enjoyed full/concessional/slab exemption from the payment of Central Excise duty subject to the various conditions and limitations as provided in that e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so much of the duty of excise leviable thereon which is specified in the said Schedule (read with any relevant notification issued under sub-rule (1) of rule 8 of the said Rules or sub-section (1) of Section 5A of the said Act, and in force for the time being), as is equivalent to an amount calculated at the rate of 10 per cent ad valorem, and (c) in the case of clearances, being the clearances of the specified goods of an aggregate value not exceeding rupees twenty five lakhs, immediately following the said clearances of the value specified in sub-clause (b) under this clause, from so much of the duty of excise leviable thereon which is specified in the said Schedule (read with any relevant notification issued under sub-rule (1) of Rule 8 of the said Rules or sub-section (1) of Section 5A of the said Act, and in force for the time being), as is equivalent to an amount calculated at the rate of 5 per cent ad valorem: Provided that the amount of duty of excise payable on the specified goods under item (i) of sub-clause (a), or sub-clause (b), or sub-clause (c), shall not be less than an amount calculated at the rate of 5 per cent ad valorem: Provided further than the aggre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) may be allowed at the rate of ₹ 920/- per tonne, without production of documents evidencing the payment of duty. 2. This order shall come into force on the 1st day of April, 1994. 13. Considering the scope of Notification No.1/93-CE dated 28.02.1993 and also the Ministry's deemed Credit Order TS/36/94 TRU dated 01.03.1994 in Digambar Foundary case [2000 (118) E.L.T. 85 (Tribunal LB)], the Larger Bench of CEGAT, New Delhi took the view that re-rollers whose aggregate value of clearances in the financial year had exceeded ₹ 75 lakhs and when they were paying the applicable rate of excise duty on the clearances beyond the value limit of ₹ 75 lakhs were not eligible for the benefit of Ministry's Deemed Credit Order TS/36/94 TRU dated 01.03.1994. 14. In Excise Reference No.10 of 2001 dated 10.04.2009 [2009 (241) E.L.T. 186 (H.P.) Sood Steel Industrial (P) Limited v. Commissioner of Central Excise], the Himachal Pradesh High Court has considered the scope of Notification No.1/93-CE dated 28.02.1993 as well as Ministry's Deemed Credit Order TS/36/94 TRU dated 01.03.1994 and also the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xemption under that Notification was not available if the aggregate value of clearances of all excisable goods for home consumption (a) by a manufacturer from one or more factories; or (b) from any factory by one or more manufacturers had exceeded ₹ 200 lakhs in the preceding financial year. Notification No.1/93-CE dated 28.2.1993 did not deal with availing of credit. Whereas the Ministry's Deemed Credit Order TS/36/94 TRU dated 01.03.1994 is that goods should be lying in stock on or after 01.04.1994 with the re-rollers. As per the Ministry's Deemed Credit Order dated 01.03.1994, re-rollers availing exemption under Notification No.1/93-CE dated 28.2.1993 will be deemed to have paid the duty. 16. In the present case, Appellant has not crossed the value of clearance of ₹ 200 lakhs during the preceding financial year and availed full exemption under Notification No.1/93-CE dated 28.02.1993 up to 24.12.1994 and thereafter started paying duty. Therefore, Appellant cannot said to be not availing exemption under Notification No.1/93-CE dated 28.2.1993 during the year 1994-95. The Deputy Commissioner of Central Excise recorded factual finding that Appellant satisfied ..... X X X X Extracts X X X X X X X X Extracts X X X X
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