TaxTMI 
TaxTMI 
2011 (10) TMI 449
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....tices were issued to the appellant for simultaneous availment of the above under para 1 (a) (i) and para 1 (a) (ii) of Notification No. 1/93, dated 8-2-1993 as amended during the year 1996-97 and for availment of Small Scale exemption on their own products and payment of full rate of duty in respect of goods manufactured on loan licence basis during the year 1997-98. The details of the Show Cause Notices are as under : (i) Show Cause Notice F.No. RI/CEC/UVL/173-B/97, dated 1-9-1997. In this Show Cause Notice, the appellant was asked to show cause why the clearances made from their factory for the goods manufactured by the appellant for their own and on account of M/s. Pharma Links should not be clubbed together by denying the benefit of full exemption upto Rs. 30 lakhs of M/s. U.V. Laboratories and also by denying the concessional rate of duty on slab rate basis on goods cleared on account of M/s. Pharma Links. The duty of Rs. 5,05,670/- was demanded from the appellant to the clearances effected from 1-4-1996 to 31-3-1997; (ii) Show Cause Notice No. V (Ch. 29)17-190/UVL/96/2080, dated 14-5-1997. In this case, the appellant has....
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.... in respect of the goods manufactured on his own account and on behalf of the loan licensee are required to be clubbed together. Benefit of full exemption on one hand and the slab exemption after availing Modvat facility on the other hand cannot be availed simultaneously. Accordingly, an appeal was filed by the department before the Commissioner (Appeals), who vide the impugned order allowed the appeal of the department and set aside the Order-in-Original passed by the lower authority. The appellants are before this Tribunal in appeal against the said order. 4. The learned advocate appearing on behalf of the appellant submitted that M/s. Pharma Link had filed declaration under Notification No. 27/92-C.E. (N.T.), dated 9-10-92 where the goods were manufactured by the appellant on account of M/s. Pharma Links and duty was also paid by the appellant on behalf of M/s. Pharma Links. He submitted that M/s. Pharma Links were also getting the goods manufactured from other manufacturer M/s. Maharashtra Organics on job work basis and they were adding the value of the goods manufactured by the appellant as well as M/s. Maharashtra Organics who were availing the benefit of Notification N....
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....; or (b) from a factory by one or more manufacturers are to be taken together for the purpose of calculating the slab of Rs. 30 lakhs/Rs. 20 lakhs/Rs. 25 lakhs respectively. The Notification clearly states that all the clearances made from the factory of the appellant on their behalf and on behalf of other manufacturer i.e. M/s. Pharma Links are to be clubbed for the purpose of claiming the benefit. He also submitted that the appellant have availed the full exemption in respect of clearances made on their own behalf and availed the benefit of Modvat facilities in respect of the clearances made on behalf of M/s. Pharma Links which is not permissible under para 1 (a) of the Notification. The appellant can avail either the benefit under para 2 (a)(i) or (a) (ii). Therefore clubbing of the clearances on behalf of the appellant as well as M/s. Pharma Links is necessary in terms of para 2 (a) of the Notification. He relied on the decision of the Hon'ble Gujarat High Court in the case of Indica Laboratories Pvt. Ltd. v. Union of India - 1990 (50) E.L.T. 210 (Guj.) wherein it was held that clearances of the loan licensee and the assessee manufacturer has to be clubbed. He, therefore, submi....
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....s notification shall apply only subject to the following conditions, namely :- (i) A manufacturer has the option to not avail the exemption under this notification and to pay the appropriate duty of excise leviable, under the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) read with any notification issued under sub-section (1) of Section 5A of the said Central Excise Act, but for the exemption contained in paragraph 1, and such option once exercised in a financial year cannot be withdrawn in the same financial year under any circumstances. (ii) The manufacturer does not avail credit of duty (under Rule 57A of the Central Excise Rules, 1944) paid on inputs used in or for the manufacture of the specified goods, the aggregate value of first clearances of which does not exceed rupees one hundred lakhs in the relevant financial year. (iii) The aggregate value of clearances of all excisable goods for home consumption (including clearances for export to Bhutan or Nepal) by a manufacturer from one or more factories, or from a factory by one or more manufacturers, has not exceeded rupees three hundred la....
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....er avails the credit of duty paid under Rule 57A, value of the clearances of first Rs. 30 lakhs will be governed by concessional rate and in para 1(a)(ii) in case the manufacturer does not want to avail this facility of para 1(a)(i), then goods upto Rs. 30 lakhs will be exempted from the whole of the duty of excise. Para 1(a)(i) and (ii) cannot be availed simultaneously. Para 1(a)(i) clearly states that in a case where a manufacturer avails credit of duty paid on inputs then clearance of Rs. 30 lakhs will be cleared at concessional rate and if the manufacturer does not want to avail this facility then only the first clearances of Rs. 30 lakhs will be totally exempted. Similar provisions are made in Notification No. 7/97. Under para 2(i) a manufacturer wants to avail the option not to avail the SSI exemption and wants to pay duty then he has to pay the duty in the whole financial year and the option once exercised cannot be withdrawn in the same financial year. Therefore, in the present case, the appellant has availed both the facilities i.e. full exemption on Rs. 30 lakhs on the goods cleared by them on their own behalf and availing Modvat facility or payment of full duty in respec....