2011 (5) TMI 840

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....stant case, has erred in granting the benefit contained in Notification No.138/86 especially when the proviso V of the Notification No.138/86 clearly stipulates that the exemption contained in the Notification shall not apply to a manufacturer of paper and paper board who avails of the exemption under Notification No.175/86?"   The facts of the case stated briefly are that the respondent M/s Special Board Mfg. Co., Vatva was, at the relevant time, manufacturing articles of paper and paper board, namely, Mill Board and Matrix Board falling under sub-heading 4805.11 and 4805.90 respectively of the Schedule to the Central Excise Tariff Act, 1985. The respondent assessee was initially constituted as a partnership firm. For the period fr....

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.... under Notification No.175/86 and in view of the fact that their firm was taken over by M/s Indo Col Chem, a proprietary concern, they started availing exemption under Notification No. 138/86 from 1.12.1992.   The Department went in appeal against the order of the Assistant Commissioner before the Commissioner (Appeals), who vide order dated 21.5.1996 allowed the appeal and set aside the said order. Being aggrieved, the assessee preferred appeal before the Central Excise and Gold Control Tribunal, Mumbai (the Tribunal) and succeeded.   Ms. Sejal Mandavia, learned Standing Counsel appearing on behalf of the applicant invited the attention of the Court to the impugned order of the Tribunal as well as the order passed by the Co....

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....firm. That it did not avail exemption under notification No.138/86 during the financial year 1992-93 as it ceased to exist from 30.11.92. From 1.12.92, Special Board Manufacturing was taken over by Indo Col Chem Ltd. as a proprietary concern and the said firm filed classification list from 1.12.92 claiming concessional rate of duty under notification No.138/86 on 11.12,92. Thus, it was a separate legal entity and Indo Col Chem Ltd. was an altogether different manufacturer who availed exemption under notification No.138/86. It was further submitted that the proposed question does not arise out of the impugned order of the Tribunal, inasmuch as Special Board Manufacturing Co. and Indo Col Chem Ltd. being different legal entities, it cannot be....

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....86 and Notification No.138/86 simultaneously. The Tribunal has recorded a categorical finding of fact to the effect that this was not a case before it and has found, as a matter of fact, that the manufacturer who claimed the benefit of Notification No.138/86 did not at the same time claim the benefit of Notification No.175/86.   In the light of the aforesaid findings of fact recorded by the Tribunal, it is apparent that the proposed question does not arise out of the impugned order of the Tribunal inasmuch as, the Tribunal has nowhere held that the manufacturer who avails of the benefit of exemption under Notification No.175/86 is also entitled to the benefit of exemption under Notification No.138/86. The Tribunal has recorded a cat....