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2016 (7) TMI 984 - CESTAT AHMEDABAD

2016 (7) TMI 984 - CESTAT AHMEDABAD - 2016 (343) E.L.T. 1099 (Tri. - Ahmd.) - SSI exemption - procedural conditions of Notification No.9/2003-CE, dt.01.03.2003, for the period March 2004 and April 2004 to June 2004 not fulfilled - Held that:- A plain reading of the said notification, particularly the condition in clause 2, it is clear that the assessee-manufacturer requires to exercise their option to avail exemption under this notification i.e. to pay duty at 60% of the normal rate of duty at t .....

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statutory records and the demand has been issued for the normal period. Thus, in our view, imposition of penalty of ₹ 1.00 lakh in the circumstances of the case, appears to be too harsh. - Decided partly in favor of assessee. - E/1126/2008-DB - A/10575/2016 - Dated:- 30-5-2016 - Dr. D.M. Misra, Member (Judicial) and Mr. P.M. Saleem, Member (Technical) For Appellant: Shri Anand Nainawati, Advocate For Respondent: Shri L. Patra, A.R. ORDER This is an appeal against OIA No.RKA/482/SRT-I/08, .....

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3, for the period March 2004 and April 2004 to June 2004, without fulfillment of conditions laid down under the said notification. A demand notice was issued on 11.04.2005, proposing recovery of duty short paid amounting to ₹ 8,69,711/- and penalty under Rule 25 of Central Excise Rules, 2002. On adjudication, the demand was confirmed and penalty of ₹ 1 lakh was imposed under the said Rules. Aggrieved by the said order, the Appellants filed an appeal before the learned Commissioner (A .....

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nt of the financial year to avail the said benefit. It is his contention that the said condition is procedural one and non-fulfillment of the same would not dis-entitle to the benefit of the notification. In support, he referred to the judgment of th Tribunal in the case of M/s Technocrats Engineering Co Vs CCE Mumbai-II - 2001 (137) ELT 459 (Tri-Mumbai), M/s Bombay Processors Vs CCE Mumbai - 2005 (184) ELT 371 (Tri-Mumbai), CCE Vs J.S. Gupta & Sons - 2015 (318) ELT 63 (All.). 4. Per contra, .....

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hdrawn during the remaining part of the financial year. Thus, the condition laid down is mandatory in nature and therefore, in view of the principle of law laid down by Hon'ble Supreme Court in the case of CCE New Delhi Vs Hari Chand Shri Gopal - 2010 (260) ELT 3 (S.C.) and CCE Pondichery Vs M/s Honda Siel Power Products Ltd - 2015-TIOL-247-SC-CX [=2015 (325) ELT 644 (S.C.)], non-fulfillment of the said condition would not make the Appellant eligible to the benefit of said notification. 5. H .....

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s conferred by sub-section (1) of section 5A of the Central Excise Act, 1944 (1 of 1944) (herein after referred to as the Central Excise Act) and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 9/2002-Central Excise, dated the 1st March, 2002, published in the Gazette of India vide number G.S.R. 130 (E), dated the 1st March, 2002, the Central Government, being satisfied that it is necessary in the public interest so to do, her .....

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tral Excise Tariff Act (herein after referred to as the Second Schedule), as the case may be, as is in excess of the amount calculated at the rate specified in the corresponding entry in column (3) of the said Table : Provided that nothing contained in this notification shall apply to a manufacturer who has availed the exemption under notification No. 39/2001-Central Excise, dated the 31st July, 2001, published in the Gazette of India vide number G.S.R. 565 (E), dated the 31st July, 2001, in the .....

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to the following conditions, namely:- (i) a manufacturer who intends to avail the exemption under this notification shall exercise his option in writing for availing the exemption under this notification before effecting the first clearances and such option shall be effective from the date of exercise of the option and 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 juri .....

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clearances of specified goods (excluding the value of clearances referred to in para 3 of this notification) till the date of exercising the option; (iii) where a manufacturer opts for availing the exemption under this notification in terms of condition (i) above, the clearances of specified goods already made during the financial year, prior to the exercise of such option, shall be taken into account for computing the aggregate value of clearances, as specified in the said Table; Illustration 1 .....

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8/2003-Central Excise, dated the 1st March, 2003, opts to avail of this exemption after making clearances having an aggregate value of rupees twenty lakhs. He is entitled under this notification to additional clearances of an aggregate value of rupees eighty lakhs at the concessional rate of sixty per cent. of normal duty. (iv) where a manufacturer clears the specified goods from one or more factories, the exemption in his case shall apply to the aggregate value of clearances mentioned against e .....

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anufacturers, does not exceed rupees three hundred lakhs in the preceding financial year. 6. A plain reading of the said notification, particularly the condition in clause 2, it is clear that the assessee-manufacturer requires to exercise their option to avail exemption under this notification i.e. to pay duty at 60% of the normal rate of duty at the beginning of the financial year itself and the option once exercised, cannot be changed in the same financial year. Needless to emphasize that the .....

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e Hon'ble Supreme Court, in the case of Honda Siel Power Products Ltd s case(supra), while considering the eligibility to the Notification No.10/2002-CE, dt.01.03.2002, observed as follows:- 4. We find that the Tribunal has decided the case in favour of the assessee by observing that clearing of goods with payment of Excise duty with current account was only an error and the assessee had not violated the more substantial condition viz no Cenvat Credit should be taken in regard to the goods. .....

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