2000 (3) TMI 279

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....rs impugned in these appeals the Commissioner (Appeals) has, on an application filed under Section 35E(4) of the Act, accepted the stand of the department that the assessee was not entitled to the benefit, and over-ruled the orders of the lower authorities. 2.  We have heard Shri P.B. Ranadive for the appellant M/s. Velmor Home Docor Pvt. Ltd. appellant M/s. Reliable Cans is absent and unrepresentative and has requested decision on merits of the submissions in the appeal. 3.  The relevant paragraph 4 of the notification and the second proviso under this paragraph as it stood on 1-4-1992 are reproduced below: "The exemption contained in this notification shall be applicable only to a factory which is an undertaking registe....

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....e of these appeals is therefore limited to the period between 1st April and 22nd May, 1992. The Commissioner (Appeals) has held that each of the assessees had availed of the benefit of the notification in the preceding financial year under clause (a) in the first proviso under paragraph 4 and therefore by virtue of the second proviso under this paragraph the benefits will not be available to each of the appellants. 6. It is not denied that neither of the assessees was registered as a small-scale industrial undertakings as provided in paragraph 4. Mr. Ranadive does not claim that during any of the preceding financial years the appellant, whom he represents, had availed of benefits in terms of clause (b) of the proviso under paragraph....

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....nancial year. The net result would be that the benefit of the notification would not be available to this appellant and hence we are unable to interfere with the Commissioner (Appeals) order. 7.  The contention raised by M/s. Reliable Cans is that it started manufacture of goods in February 1986 and that during the relevant period the exemption under notification 85/86 was available. However, the fact that the notification might have applied is not relevant. It is not contended in clear terms and with supporting evidence that this appellant availed of the Notification 85/86 one of the predecessor Notification to 175/86 during this period. If the appellant had done so it could possibly have a case. However, in the absence of any such....