TaxTMI 
TaxTMI 
2010 (8) TMI 223
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....ssion of Notification No. 38/97-C.E. and this notification also prescribed concessional rate of duty of 60% of the normal rate with Modvat benefit, for first clearances starting from 1st April of the financial year upto the limit of Rs. 50 lakhs prescribed in the Notification and a concessional rate of 80% of the normal rate with Modvat benefit for next Rs. 50 lakhs worth clearances immediately following the first Rs. 50 lakhs worth clearances. The concessional rate of duty, however, was subject to certain conditions as prescribed in the Notification. When Notification No. 9/98-C.E., dated 2-6-98 was issued, the Appellant again filed a declaration that w.e.f. 1-7-98, that they would avail of this exemption. However, from the scrutiny of their RT.12 returns, it was found that they had been paying duty at the normal rate from 1-4-98 till 31-7-98. The Appellant again vide their letter dated 3-8-98 wrote to the Range Officer that w.e.f. 1-8-98, they would avail of the exemption under Notification No. 9/98-C.E. but they were told by the Range Officer vide letter dated 3-9-98 and 16-9-98 that at this stage they could not opt for this exemption, as during the period from 1-4-98 to 31-7-98....
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....the assessee cannot thereafter opt to switch over to Notification No. 8/98-C.E. for the rest of the financial year and in this case, this was not the request of the Appellant, that there is no basis for the Department's decision that just because during the period from 1-4-98 to 31-7-98, the Appellant had paid duty at normal rate, they cannot opt for Notification No. 9/98-C.E. w.e.f. 1-8-98; that in this regard, they rely upon the Tribunal's judgment in the case of Sonodyne Electronics Co. Pvt. Ltd. v. CCE reported in 2004 (171) E.L.T. 397 (Tri.-Kolkata) wherein it was held that the benefit of Notification No. 9/98-C.E., dated 2-6-98 is available to an Assessee irrespective of the fact whether the clearances prior to 2-6-98 had been made at Nil rate of duty or at full rate of duty or under Notification No. 38/97-C.E.; that the Appellant while exercising the option to avail of the concessional rate of duty under Notification No. 9/98-C.E. w.e.f. 1-8-98 had taken into account the clearances made during the period from 1-4-98 to 31-7-98 in the first slab of the aggregate value of the clearances; and that in view of this, the impugned order is not correct. 2.2 Sh. Amrish Jain,....
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....tral Excise, dated the 27th June, 1997, the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts clearances, specified in column (2) of the Table below, (hereinafter referred to as the said Table) for home consumption, of excisable goods of the description specified in the Annexure appended to this notification (hereinafter referred to the specified goods), from so much of the duty of excise leviable thereon which specified in the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), as is excess of the amount calculated at the rate specified in the corresponding entry column(3) of the said Table : S. No. Clearances Rate of duty 1. First clearances upto an aggregate normal Value not exceeding fifty lakh Rupees in the financial year 1998-99 Sixty percent of rate of duty 2. Clearances upto an aggregate value Not exceeding fifty lakh rupees immediately following the clearances Specified against S. No. 1 above during The financial year 1998-99 Eighty percent of normal rate of duty Note I : If any clearances for home consumption have been effected before the 2nd day of June, 1998 under Notification ....
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....998, he is deemed to have switched over to that notification. He makes further clearances for home consumption after 2nd of June, 1998, having a value of Rs. 8 lakhs and thereafter he opts for payment of duty under this notification (i.e. 9/98-C.E.). He is entitled to additional clearances (at the concessional rate of 60% of normal duty) upto a value of Rs. 12 lakhs during the remaining part of the financial year}. Note II : Further, if the aggregate of the aforesaid clearances exceeds Rs. 50 lakhs, then such of the aggregate amount which is in excess of Rs. 50 lakhs shall be taken into account for the purposes of S. No. 2. ILLUSTRATION REGARDING S. NO. 2 OF TABLE A manufacturer who avail of exemption under notification No. 38/97-C.E., dated 27th June, 1997 made clearances worth Rs. 50 lakhs (at the concessional rate of 60% of normal rate of duty) and Rs. 12 lakhs worth of clearances ( at the concessional rate of 80% of normal rate of duty), upto 1st June, 1998. Such a manufacturer shall be entitled to additional clearances upto a value of Rs. 38 lakhs only (at the concessional rate of 80% of normal rate of duty) in the remaining part of this financial year. 2.The exemp....
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.... for home consumption have been effected before 2-6-98 under Notification No. 16/97-C.E., dated 1-4-97 whether at nil rate of duty or otherwise or under Notification No. 38/97-C.E., dated 27-6-97, such clearances together with clearances for home consumption, if any, effected or on after 2-6-98 under Notification No. 9/98-C.E. shall be taken into account for computing the limit of Rs. 50 lakhs in S. No. 1 of the table i.e. for calculating, the first clearances in the financial year 1998-99 upto aggregate value not exceeding Rs. 50 lakhs. This note has also been explained in the Notification by illustration. Thus for example, if a manufacturer during the period from 1-4-98 to 1-6-98 had made clearances worth Rs. 30 lakhs at nil rate of duty or otherwise under Notification No. 16/97-C.E. or under Notification No. 38/97-C.E., he would be entitled to concessional rate of duty of 60% of the normal rate of duty only in respect of further clearances upto Rs. 20 lakhs. 3.2 Para 2 of the exemption Notification prescribes the conditions subject to which this exemption notification is available and as per condition (i) the manufacture who commences his first clearances in the year 19....