2003 (6) TMI 70 - AT - Central Excise

Tribunal excludes benefit, considers clearances for exemption calculation, emphasizes duty computation exclusion, allows Modvat credit

The Tribunal held that the benefit of Notification No. 8/98-C.E. was not available to goods manufactured by M/s. Nirula & Company (P) Ltd. The ... SSI Exemption - Specified goods - First clearances - Valuation (Central Excise) - Cenvat/Modvat Issues:1. Whether the benefit of Notification No. 8/98-C.E., dated 1-3-1998 is available to the goods manufactured by M/s. Nirula & Company (P) Ltd.Detailed Analysis:The appeal filed by M/s. Nirula & Company (P) Ltd. questions the availability of the benefit of Notification No. 8/98-C.E. to their manufactured goods. The dispute arose when the Deputy Commissioner, through Order-in-Original, denied the benefit of the notification due to clearances exceeding the exemption slab. The Commissioner (Appeals) upheld this decision, leading to the appeal.The main contention revolves around condition (vi) of Para 2 of Notification No. 8/98. This condition specifies that the exemption applies to the total value of clearances from a factory, not separately for each manufacturer. The Appellants argue that clearances by M/s. Nirula Corner House Ltd. (NCHL) before availing the exemption should not be considered. They rely on legal precedents to support their claim, emphasizing that clearances on payment of duty at Tariff rate should not be included in calculating the value of first clearances under the SSI Exemption Notification.On the other hand, the Revenue argues that clearances by M/s. NCHL must be considered as they also manufactured specified goods in the same factory. The Revenue points out that Para 4 of the notification excludes specific clearances for determining the aggregate value, and the clearances by M/s. NCHL do not fall under the exclusions listed. The Revenue cites a decision by the Larger Bench of the Tribunal to support their position.The Tribunal's analysis delves into the provisions of Notification No. 8/98-C.E. and the relevant conditions. The Tribunal rejects the Appellants' argument that all manufacturers must avail the exemption for condition (vi) to apply. It clarifies that the exemption applies to the total value of clearances from the factory, as specified in the notification. The Tribunal agrees with the Revenue that clearances by M/s. NCHL should be considered for calculating the aggregate value of clearances for home consumption, as they do not fall under the exclusions listed in Para 4 of the notification.Additionally, the Tribunal addresses the computation of duty, stating that the price charged should be treated as cum-duty-price, and the assessable value should be re-determined after deducting the duty. Citing a Supreme Court decision, the Tribunal emphasizes the exclusion of the excise duty element from the sale value. The Tribunal remands the matter to the Adjudicating Authority for re-computing the duty amount and allowing Modvat credit based on duty paying documents provided by the Appellants.