TMI Blog2006 (4) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... o reason why the appellant should have been shut out from pleading its case on the same basis. As far as the decision on merits is concerned, Serial No. 5 leaves no doubt in our mind that the yarn referred to in Col. 3 is double yarn. This is clear from the condition mentioned in Col. 5 namely that the yarn must be produced falling within Chapter 52, 54 and 55 of the Schedule to the Central Excise and Salt Act, 1944. The Tribunal has also considered the fact that unless double yarn was subjected to the processes mentioned in Col. 3 of the Notification, there was no question of the yarn being marketable. The proviso is limited to Serial Nos. l and 2 and does not affect Serial No. 5. The reasoning of the Tribunal, in our opinion, is unexce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aming, warping, wrapping, winding or reeling or any one or more of these processes, with or without the aid of power Nil If produced out of yarn falling within Chapters 52, 54 or 55 of the said Schedule, on which the appropriate duty of excise under the said Schedule, or as the case may be, the additional duty leviable under the Customs Tariff Act, 1975 (51 of 1975), has already been paid. 3. The Notification ends with the proviso to the effect that the exemption contained relating to Serial No. 1 or 2 shall not apply to clearances of yarn from a factory having facilities (including plant and equipment) for producing single yarn. One of the appellants before us, namely, M/s. Devangere Cotton Mills Ltd. (C.A.No. 1/2001) had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were similarly situated as M/s. Coats Viyella (India) Ltd. and even if they were not entitled to invoke Serial No. 1, nevertheless, they were entitled to invoke Serial No. 5 and be granted the same benefit as M/s. Coats Viyella (India) Ltd. was. The third member of the Tribunal, however, was of the view that since the arguments had not been raised at any earlier stage, it could not be permitted to be raised and accordingly rejected the plea. Being aggrieved M/s. Devangere Cotton Mills Ltd. are also before us in appeal (CA.No. 1/2001). 6. Learned counsel appearing on behalf of the appellant in CA.No. 1/01 has submitted that the proviso could not be relied upon to reject the claim of the appellant under Serial No. 1 inasmuch as it was limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to hear the appellant only on the ground that the ground had not been raised earlier. Rule 10 was sufficiently widely framed to allow the Tribunal to do so. Having regard to the fact that the Tribunal was itself considering the issue on a contested hearing there was no reason why the appellant should have been shut out from pleading its case on the same basis. 9. As far as the decision on merits is concerned, Serial No. 5 leaves no doubt in our mind that the yarn referred to in Col. 3 is double yarn. This is clear from the condition mentioned in Col. 5 namely that the yarn must be produced falling within Chapter 52, 54 and 55 of the Schedule to the Central Excise and Salt Act, 1944. The Tribunal has also considered the fact that unles ..... X X X X Extracts X X X X X X X X Extracts X X X X
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