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TMI Blog2024 (10) TMI 1337X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty. This is the third round of litigation and the relevant period is 1992-93 to 1996-97 and the show cause notice [SCN] was issued on 21.03.1997. In the first round of litigation, the matter travelled up to Supreme Court and the Hon'ble Apex Court remanded the matter to the original authority-the Commissioner-to decide the matter afresh in the light of the directions given by the Supreme Court. As directed by the Supreme Court, the appellant had filed their submissions and appeared before the Commissioner on 20.12.2007 who passed order dated 28.03.2008 which was assailed before this Tribunal by the appellant in Excise Appeal No. 1343 of 2008 which was heard along with two appeals filed by the Directors. All three appeals were disposed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation has been made for the goods cleared in jumbo packs to ICDS considering them as not put up in unit containers and not intended ordinarily for sale. However, it is also on record that in addition to such clearances, the assessee has been making clearance of both the above products in unit containers of sizes between 100gms and 5 Kgs. which have been cleared bearing brand name 'BONTON'. Such clearances of the Wheat Puffs will not be eligible for classification under 1904 90 and the same will be classifiable under 1904 10. In respect of the product Soya Nuts, such goods cleared in unit containers with brand name will be classifiable under 2109 91. The clearances of such goods will be liable to payment of excise duty at appropriate rates. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. 10. With the above observations, the appeals are disposed in above terms, by way of remand." 3. The order impugned in this appeal was passed in pursuance of the above Final Order. The Commissioner confirmed demand of only Rs.3,52,207/- and imposed a penalty of equal amount. This covered the soya nuts sold in unit containers during the period 1993-94 and 1994-95 and also wheat puffs sold in unit containers during period 1992-93 to 1996-97. 4. We have heard Shri Pulak Raj Mullick, learned counsel for the appellant and Shri Unmesh Kumar, learned authorised representative appearing for the department and perused the records. 5. According to Shri Mullick, duty could not have been confirmed because it was entitled to the benefit of SSI e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lue of clearances of goods did not exceed Rs.7,50,000/-. He submits that as per the Explanation II of the Notification for computing the aggregate value of clearances under the Notification, the value clearances of any excisable goods which are chargeable to nil rate of duty or which are exempted from the whole of excise duty by any other notification cannot be reckoned. Therefore, the entire value of the goods supplied by the appellant under ICDS cannot be reckoned for the purpose of value of clearances. If all the exempted clearances were deducted, the value of clearances of all dutiable goods in each year even according to the impugned order had not exceeded Rs.7.5 lakhs. Therefore, the appellant was entitled to the benefit of the exempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... current financial year did not exceed or is not likely to exceed rupees seven and a half lakhs; or (b) In a case where a manufacture who is manufacturing specified goods in a factory, other than a factory which is registered under the Industries (Development and Regulation)Act, 1951 (65 of 1951) with the Directorate General of Technical Development in the Ministry of Industry, and has been availing of the exemption under this notification during the preceding financial year: Provided further that nothing contained in clause (b) of the first proviso shall apply in a case where a manufacturer who is manufacturing specified goods in a factory has availed of the exemption in pursuance of clause (A) of the said proviso in any of the precedi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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