TMI Blog2000 (3) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central Government directed that the ingots and re-rollable materials of iron or steel purchased from outside and lying in stock on or after the first day of April, 1994 with the re-rollers, availing of the exemption under Notification No. 1/93-C.E., dated 28-2-1993 will be deemed to have paid the Central Excise Duty. The credit of duty under Rule 57A of the 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 Chapter 73 of the Central Excise Tariff, was allowable. The credit at the rate of Rs. 920 per tonne was allowable in respect of such ingots and re-rollable materials, without production of documents evidencing the payment of duty. Under Notification No. 1/93-C.E., dated 28-2-1993, the specified goods upto the aggregate value of clearances not exceeding Rs. 75,00,000/- enjoyed full/ concessional/slab exemption from the payment of Central Excise Duty subject to the various conditions and limitations as provided in that exemption Notification. The exemption under that Notification was not available if the aggregate value of clearances of all excisable goods for home c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision in the case of Sri Venkateswara Steel Industries, and expressed the view that the benefit of deemed credit was available to the re-rollers while they were still availing of the exemption under Notification No. 1/93-C. E., and not after they had ceased to be so eligible to the benefit, and were not longer availing of the exemption. In other group of appeals, the Commissioner of Central Excise (Appeals), Allahabad under Order-in-Appeal dated 31-12-1996 had taken a view that the benefit of deemed credit was available only to such manufacturers, who were availing the exemption of duty upto the value of clearances of Rs. 75,00,000/- only, and that the eligibility criteria of the value limit of Rs. 2,00,00,000/- had got nothing to do with the exemption from duty or the rate of duty applicable to a particular slab of clearances value. In view of the Tribunal's earlier decision in the case of Sri Venkateswara Steel Industries, the matter had been referred to the Larger Bench. 4. The matter was heard on 28-2-2000 and 29-2-2000 when Shri G.S. Bhangoo, Advocate appeared for some of the manufacturers. On behalf of some, written submissions were filed. The Revenue was represented by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... While the extent of exemption was limited to the aggregate value of clearances not exceeding Rs. 75,00,000/-, no such exemption at all was available if the aggregate value of clearances of all excisable goods for home consumption had exceeded Rs. 2,00,00,000/- in the preceding financial year. For the current year after limiting the exemption to the aggregate value of clearances of Rs. 75,00,000/-, there was no stipulation with regard to the value of clearances of payment of full excise duty as applicable. No benefit was however, available to the clearances in excess of Rs. 75,00,000/-. For the next financial year, however, the benefit of small scale exemption was not to be available, if the clearances in the current financial year exceeded Rs. 2,00,00,000/- (Rs. 75,00,000/- exempted and rest not exempted). The limit of clearances in the preceding financial year as not exceeding Rs. 2,00,00,000/- was for the eligibility and was not for the extent of exemption. Beyond Rs. 75,00,000/- worth of clearances, full duty was applicable and no exemption was available. The extent of exemption could not be confused with the eligibility criteria. A manufacturer whose value of clearances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken advantage or profited by that thing or utilised it to his benefit. The expression "availing of the exemption" signify "making use of " and "taking advantage of " 'currently'. After the period of availment of the benefit and advantage is over, it could not be said that one is availing of the benefit or advantages. 10. The eligibililty criteria is different from the extent of exemption. In para-3 of the Notification, it is provided as under :- "Nothing contained in this Notification, shall apply 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 Rs. 200 lakhs in the preceding financial year." This aggregate value of clearances of all excisable goods for home consumption for the purpose of para-3 did not relate to the current financial year in which the benefit of exemption was being availed. In the financial year in which the benefit of exemption was being availed (once the manufacturer was otherwise eligible for the exemption, among others, based on past performance), the extent of clearances beyond Rs. 75,00,000/- ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egory or manufacturers and the character of their operations by virtue of Rs. 75,00,000/- limit does not change and they continue to be the same category of manufacturers as they were when they cleared the goods at slab rate upto Rs. 75,00,000/-. It was added; "the wording used in the Notification viz. the facility available is to those who are availing the benefit of Notification No. 1/93 C. E. can be taken to be as identifying the category of manufacturers, who satisfy the criteria as set-out in Notification No. 1/93 C. E. and who actually avail of the benefit of this Notification during the year in question and continue to operate under this Notification throughout the year." The Bench, in our view, has not correctly analysed the expression 'availing of the exemption'. During the current financial year, there is no availment of exemption beyond the limit of Rs. 75,00,000/-. No general exemption had been provided under Notification No. 1/93-C.E., and the extent of exemption and the value limit beyond which no exemption was available have been specifically and clearly provided in that exemption notification. No general view can be taken that any manufacturer, who availed of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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