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TMI Blog2016 (6) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant subpara (iii) of para 2 of Notification No. 8/2003- C.E., dated 01.03.2003, which debars the manufacturer from taking credit of duty paid on inputs, if manufacturer opts for availing of the benefit under Notification No. 8/2003-C.E., dated 01.03.2003? ii) Whether the Tribunal was correct in distinguishing the judgment of Hon'ble Supreme Court in the case of Commissioner of Central Excise, Ahmedabad vs. M/s Ramesh Food Products reported in 2004(174) ELT 310 (SC)? 3. The facts, in short, necessary for adjudication of the instant appeal as narrated therein may be noticed. The respondent availed exemption upto Rs. 100 lacs under notification dated 1.3.2003 for manufacture and clearance of their own goods and simultaneously availed and utilized Cenvat/Modvat credit qua other branded goods manufactured and cleared by them on payment of duty. A show cause notice dated 11.1.2007 (Annexure A-1) was issued to the assesseerespondent after denial of SSI exemption by raising demand of duty along with interest and penalty. The adjudicating authority vide order dated 29.6.2007 (Annexure A-2) confirmed the demand of duty amounting to Rs. 15,73,174/- under Section 11A of the Act alo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A plain reading of Clause 3(a) of the said notification shows that for the purposes of determining the aggregate value of the clearances of all excisable goods for home consumption, the clearances bearing the brand name or the trade name of another person which are ineligible for the grant of exemption under the said notification in terms of Clause 4 thereof shall not be taken into account. Further, the relevant portion of Clause 4 of the aforesaid notification stipulates that the exemption contained in the notification would not apply to the specified goods bearing the brand name or trade name whether registered or not of another person. It has been noted in clause 1 of the Table contained in the said notification, which deals with the subject of value of the clearance provided that, "first clearance upto an aggregate value not exceeding one hundred lakh rupees made on or after the first day of April in any financial year", shall be liable for nil rate of duty. 8. The Tribunal had recorded that the period involved in these appeals is from October 2005 to September, 2006 and the notification dated 1.3.2003 (as amended) was in force. Referring to Clauses 3(a) and 4 of the said noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this regard, cannot be sustained and the demand of duty made while denying the benefit under the said notification cannot be sustained." 10. The approach of the Tribunal finds support from the decision of the Apex Court in Commissioner of C. Ex., Chennai v. Nebulae Health Care Ltd. 2015 (325) ELT 431 (SC) where similar issue was under consideration. The relevant observations of the Apex Court read thus:- "13. Having taken note of the relevant provisions of the aforesaid exemption Notifications and without commenting upon the same at this juncture, we would like to discuss few judgments of this Court which have considered and interpreted these Notifications in the context of the issue that arises for determination in these appeals. In Commissioner of Central Excise, Ahmedabad v. Ramesh Food Products - 2004 (174) ELT 310 (S.C.), the assessee therein was engaged in the manufacture of biscuits under the brand name 'Ramesh' on his own account. It was also manufacturing, on job work basis, biscuits under the brand name of 'Cadbury' on behalf of M/s. Hindustan Coco Products, Bombay. It availed MODVAT benefit on the inputs used for manufacture of Cadbury branded biscuit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be included for the purposes of determining the aggregate value of the clearances for home consumption; and (b) such products bearing brand names or trade names of third parties, even if manufactured by the SSI Unit, are not eligible for any exemption and excise duty thereupon has to be paid. Once we understand the scheme of the Notifications in the aforesaid perspective, which according to us is the only manner in which it has to be understood, it becomes apparent that so far as manufacture of branded goods of third party on job work basis by the SSI Unit is concerned, they are to be dealt with differently in the sense that they do not come within the ambit of exemption on which normally excise duty, as per the provisions of the Act, is payable. As a sequitur, it also follows that once excise duty is paid by the manufacturer on such branded goods manufactured, the brand name whereof belongs to another person, on job work basis, the SSI Unit would be entitled to CENVAT/MODVAT credit on the inputs which were used for manufacture of such goods as on those inputs also excise duty was paid. To put it otherwise, these branded goods manufactured by the SSI Units meant for third parties a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 1st day of April in any financial year, by a manufacturer from one or more factories, (a) in the case of the first clearances of the specified goods upto an aggregate value not exceeding rupees thirty lakhs, - (i) in a case where a manufacturer avails of the credit of the duty paid on inputs used in the manufacture of the specified goods cleared for home consumption under Rule 57A of the said Rules, 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 Central Excises and Salt Act, 1944 (1 of 1944) and in force for the time being] as is equivalent to an amount calculated at the rate of 10% ad valorem: (ii) in any other case from the whole of the duty of excise leviable thereon : Provided that the aggregate value of clearances of the specified goods under sub-clause (ii) of this clause in respect of any one chapter of the said Schedule, shall not exceed rupees twenty lakhs; XX XX XX" (d) Interpreting the aforesaid two sub-clauses harmoniously, this Court, while giving its imprimatur to Kamani Foods case, hel ..... 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