1997 (1) TMI 316

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.... scheme and claimed small-scale exemption under Notification 175/86 as amended. A show cause notice dated 29-10-1986 was issued to the respondents demanding duty from 1-4-1986 onwards at appropriate rate on the ground that they could not have opted out of the Modvat scheme and claimed exemption. Asstt. Collector held that they were not eligible for the full exemption under the first slab under the Notification 175/86 and as a consequence demanded duty on the clearance of electric storage batteries at appropriate rate indicating the rate as 6.25% ad valorem from 1-4-1986 and 15% ad valorem from 2-4-1986. Collector (Appeals) set aside this order on the question only of non-quantification of the demand. He relied upon the judgment of the Bomba....

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....beneficial to him. In this connection, he cites the Order No. 202/93-C of Tribunal in case of Collector of Central Excise, New Delhi v. M/s. Goela Enterprises which relied upon the judgment of Calcutta High Court in case of Bengal Cardboard Ind. & Printers (P) Ltd. v. Asstt. Collector of Central Excise - 1992 (62) E.L.T. 684 (Cal.). He, therefore, submits that even if it is admitted that mere non-quantification of demand would not vitiate the proceedings, the basic question of law is already in their favour and even if the matter is remanded, it will be a futile exercise since Collector (Appeals) while examining the case would necessarily have to follow the Tribunal's orders cited earlier. 4. We have heard both sides. The show cause....

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....t the respondents on notice as to why the difference in duty payable and not paid ought to be paid. In this view of the matter, we are of the view that this would not vitiate the proceedings. 6. Coming now, however, on the merits of the case, we find that Calcutta High Court in case of Bengal Cardboard Ind. & Printers Pvt. Ltd. v. Asstt. Collector - 1992 (62) E.L.T. 684 (Cal.) held that the question where the petitioner could enjoy benefit as small-scale industry or enjoy benefit in Modvat scheme is purely a matter for assessee to decide. The Calcutta High Court judgment has been based on the earlier decision of the Tribunal in case of Brooks Industries v. Collector of Central Excise - 1989 (41) E.L.T. 183 (Tribunal). Tribunal in it....