2001 (10) TMI 154 - AT - Central Excise

Tribunal: Opting out of exemption, penalty set aside for lack of proposal in show cause notice

The Tribunal upheld that M/s. Prabhat Forgings Works effectively opted out of the exemption under Notification No. 1/93-C.E. by clearing goods without ... SSI Exemption - Penalty Issues: Whether exemption under Notification No. 1/93-C.E. is available for goods manufactured and cleared by M/s. Prabhat Forgings Works.Analysis:1. Issue of Exemption Eligibility: The appeal in question raised the issue of whether M/s. Prabhat Forgings Works is eligible for the exemption under Notification No. 1/93-C.E. The Appellants argued that they were not aware of the eligibility criteria for the exemption and only filed a declaration claiming exemption after becoming aware of it. They contended that since they had not formally opted out of the exemption in writing prior to 15-5-96, they should be allowed to claim the benefit. However, the SDR argued that the Appellants had effectively opted out by clearing goods without availing the exemption during the financial year 1996-97.2. Classification Dispute: Another issue raised was the classification of the goods under Chapter 84 of the Central Excise Tariff Act. The Appellants claimed that their product had been wrongly classified under 8455.90, whereas Metal Rolls are classifiable under 8455.10. However, it was noted that since this issue was not raised before the lower authorities, it could not be considered for the first time at the Appellate Tribunal.3. Option to Avail Exemption: The Notification specified that a manufacturer has the option to not avail of the exemption and pay duty at the applicable rate for subsequent clearances in the same financial year. The Tribunal upheld that once the Appellants had cleared goods without availing the exemption during the financial year 1996-97, they had effectively exercised their option to not avail of the benefit. Therefore, they could not claim the exemption for subsequent clearances in that financial year.4. Penalty Imposition: The Tribunal set aside the penalty imposed on the Appellants as the show cause notice did not contain any proposal for the imposition of a penalty. It was noted that the absence of mention of a penalty in the notice precluded the imposition of such a penalty. The appeal was partly allowed, upholding the finding regarding the exemption but setting aside the penalty.