2004 (96) ECC 487 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

New Delhi -- Bench-NB(C)

Shri S.S. Kang, Member (J) and Shri V.K. Agrawal, Member (T)

Uttam Industries

Versus

CCE, Panchkulla

Appeals No. E/1537-38/2003-NBC

[Arising out of Order-in-Appeal 114/AKG/GGN/2003, dated 31.3.2003, passed Commissioner of Central Excise (Appeals), Delhi-III]

Final Order No. 264-65/2004-NB-C, dt. 10.3.2004, Certified on 26.3.2004

Exemption

Notification No. 135/94-CE -- Benefit of -- As the appellants are availing credit in respect of the inputs used in the manufacture of the Aluminium circles and hence not fulfilling the condition of the notification -- Benefit denied was proper.

PRESENT :

Shri J.S. Agarwal, Adv. for the appellant.

Shri Kumar Santosh, SDR for the respondent.

Case Cited :

Novopan India Ltd. v. CCE & C, Hyderabad, 1994 (73) ELT 769 (SC)..................... [Para 5]

Per : S.S. Kang

Appellants filed these appeals against the common Order-in-Appeal passed by the Commissioner (Appeals). One appeal is filed in respect of the dispute where the benefit of Notification No. 135/94-CE dated 27.10.94 was denied. This other appeal is in respect of the consequential demand.

2. Heard both sides.

3. The appellants are engaged in the manufacture of aluminium circles and utensils. The appellants filed classification list with effect from 27.10.94 whereby the appellants claimed benefit of Notification No. 1/93 dated 28.2.93 as well as benefit of Notification No. 135/94. The classification list was approved after denying the benefit of Notification No. 135/94. Consequential demand was also raised.

4. The contention of the appellants is that they were entitled to the benefit of this notification as they were clearing the aluminium circles for use in the manufacture of utensils and they were not availing the benefit of the modvat credit in respect of the circles so cleared. The appellants were maintaining separate accounts in respect of the aluminium circles manufactured by them which were cleared after availing the benefit of Notification No. 1/93 and Notification No. 135/94. As the appellants were not taking any credit in respect of the inputs used in the manufacture of aluminium circles which were cleared for use in the manufacture of utensils, hence they are entitled for the benefit of Notification No. 135/94.

5. The contention of the Revenue is that the appellants want to avail simultaneous benefit of two notifications. Appellants were availing benefit of Notification No. 1/93 and also want to avail benefit of Notification No. 135/94. The condition for availing benefit of Notification No. 135/94 is that the aluminium circles are to be cleared for intended use in the manufacture of utensils and no credit of duty paid on inputs has been taken. As the appellants were availing benefit of credit in respect of the inputs used in the manufacture circles and, therefore, are not entitled to the benefit of Notification No. 135/94. The Revenue also relied upon the decision of the Hon'ble Supreme Court in the case of Novopan India Ltd. v. CCE & C, Hyderabad, 1994 (73) ELT 769.

6. In this case, the appellants want to avail the benefit of the Notification No. 135/94-CE. For availing benefit of this notification, the condition is that circles are to be cleared for intended use in the manufacture of utensils and no credit has been taken in respect of the inputs used in the manufacture. Admittedly, the appellants are availing credit in respect of the inputs used in the manufacture of circles as they were simultaneously availing the benefit of Notification No. 1/93 with modvat from the beginning of the financial year. The Hon'ble Supreme Court in the case of Novapan India Ltd. (Supra) held that the exemption being in the nature of exception to be construed strictly at the stage of determination whether assessee falls within its terms or not and in case of doubt or ambiguity, benefit of it must go to the State and onus is on the assessee to establish clearly that he is covered by the provisions of the notification. In the present case, it is not disputed by the appellants that they were availing the credit in respect of the inputs used in the manufacture of the aluminium circles. Therefore, we find no infirmity in the impugned order and the appeals are dismissed.

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