TMI Blog2004 (1) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... has not issued show cause notice to all the loan licensees except to M/s. Dukes Pharma whose appeal was allowed and hence their appeal is also taken up along with appeals against the assessee. Revenue contends in these appeals that M/s. Medopharm had furnished the value of clearances under Section 4 in respect of those goods for which clearances had been effected under Notification No. 245/83. The value furnished by the assessee had not been given before the adjudicating authority. The same should therefore be verified as it has been furnished afresh before the Commissioner (Appeals). It is also stated that the value adopted for clearances under Notification No. 245/83 itself denotes the value under Section 4, assessable value for the purpose of assessment. Hence, it is not necessary to work out a separate value under Section 4 for the purpose of availing SSI notification. It is stated that the aggregate value of clearances is nothing but sum of the value of all clearances effected in respect of specified goods. The sum of the value of all clearances would include the value adopted for clearance under Notification 245/83 also. It is stated that adoption of one value for payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the figures adopted by the Commissioner (Appeals) had been placed before the original authority, but he had not accepted those figures and had rejected the plea on a different ground. He also submitted that there was no contradiction in the letter furnished by them. He read out from the Order-in-Original and submitted that the stand taken by them had been consistent that valuation has to be done in terms of Section 4 of the Central Excise Act and value of the duty paid branded goods should not be added in terms of Explanation III in Para-4 of Exemption Notification No. 175/86 as amended by Notification No. 1/93-C.E., dated 28-2-1993. He read out Explanation III which clearly states that for the purpose of computing the aggregate value of clearances under Paragraph 1, 2 or 3, the clearances of any specified goods, bearing a brand name or trade name (registered or not) of another person, which are not eligible for grant of exemption in terms of provisions of Paragraph 4 of this notification shall not be taken into account. He submitted that the loan licensees had filed the classification list and claimed benefit of Notification No. 245/83. He produced copies of classification lis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessees had given all the details and figures and there was no admission made by them to the contrary in their letters referred to in the grounds of appeal. The classification list filed in respect of M/s. Medopharm was checked by us and we find that no claim of benefit of Notification No. 245/83 was made by them and the only claim was under SSI Notification 175/86. Therefore, the grounds taken by the Revenue's appeals that figures were furnished for the first time before the Commissioner (Appeals) is totally incorrect and an unjustified ground. The figures were available with the Original authority and there was a clear reference to this figures by him in the order. However, the same was not accepted. The Commissioner (Appeals) called for the details and also got this verified through the Chartered Accountant whose certificate was relied by him to hold that only Section 4 for the purpose of valuation is required to be adopted. He has clearly found that the loan licensees had manufactured their own branded goods and paid duty and cleared the same separately and their clearances is not required to be added. The loan licensees were also not issued with show cause notice except for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the goods. The learned Advocate argued that explanation I to the impugned notification clearly provides that the expression "value" for the purpose of the notification would mean either the value as determined in accordance with the provisions of Section 4 of the Central Excise Act, 1944 or as the case may be, according to the tariff values fixed or altered under Section 3 of the Act. He further argued that the above provision makes it clear that the authorities are under a legal obligation to determine the value for the purpose of the impugned notification only in terms of Section 3 or 4 of the Central Excise Act and not with reference to any notification issued under the provisions contained in the Central Excise Rules. The finding of the lower authority that the value determined and adopted at the time of clearance of the specified goods would be the value under Section 4 therefore does not stand the test of law. He drew my attention to the decision of the Hon'ble Tribunal in the case of Libra Drugs (India) v. Collector of Central Excise, Pune, reported in 1997 (93) E.L.T. 454 (T). On perusal of the impugned order I observed that the lower authority in Para 53 held the view th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rances exceeded 2.0 crores (f) 1990-91 1,94,81,437 -do- (g) 1991-92 1,92,37,682 -do- (h) 1992-93 1,62,18,904 -do- From the above I observe that total clearance value of the appellant companies as per Section 4 was well within the SSI limit, prescribed under Notifi- cation 175/86 except for the year 1986-87 (Sl. No. b) during which year they are not eligible for SSI concession as in the previous year i.e. 1985-86 their clearance value had exceeded Rs. 1.5 crores limit. Therefore for the year 1986-87 have to pay full rate of duty. I therefore hold that M/s. Medopharm is liable for the payment of the differential duty amounting to Rs. 7,08,023.92 for the financial year 1986-87 demanded in show cause notice C.No. V/CH. 30/17/41/87 VC, dated 9-3-1988 on account of their ineligibility to the benefit of the impugned notifications as the aggregate value of clearances from M/s. Medopharm as a factory for the preceding year 1985-86 even by taking the value in terms of Section 4 of the Act, had exceeded the value limit prescribed under the impugned notification. Similarly, I hold that M/s. Medopharm Lab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by M/s. Citadel Fine Pharmaceuticals and M/s. Citadel Fine Pharmaceuticals Private Ltd., M/s. Franco Indian on payment of the full duty without availing the SSI exemption notification would be squarely covered by proviso to Para 3 read with Para 7 to the impugned notification and therefore cannot be computed for calculating the aggregate value of clearances of the preceding financial year. This is now well settled as laid down in the case law reported in 1999 (112) E.L.T. 416 (Tribunal) in the matter of C.C.E., Madras v. Space Ford (P) Ltd. Relevant portion of the said case law is reproduced as under :- "2. Question involved in this appeal of Revenue is that whether the value of goods affixed with the brand name of another person who is not entitled to the benefit of Notification 175/86-C.E. and these being cleared on payment of duty in terms of Para 7 of the said notification should be taken into account in computing the aggregate clearances of Rs. 20 lakhs or 30 lakhs in terms of that para of the said notification of the specified goods. This question has been decided by the Revenue in the case of M/s. Jaina Detergent P. Ltd. v. C.C.E., Allahabad vide Tribunal's Order No. 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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