TaxTMI 
TaxTMI 
2018 (1) TMI 1210
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....appellants after their crossing the value of clearances of Rs. 75.00 Lacs under Notification No. 1/93-C.E., dated 28-2-1993 as amended?" 3. Some of the relevant facts for the purpose of deciding this Tax Appeal, which is numbered as first appeal, are as under:- 4. The appellant is a Private Limited Company inter alia engaged in manufacturing of Rolled product of iron and steel falling under Heading Nos. 72.11 to 72.14 of Chapter 72 of the First Schedule to the Central Excise Tariff Act, 1985 and were availing the benefit of slab-wise exemption under Notification No. 1/93-C.E., dated 28-2-1993 at the relevant time. 5. In exercise of the powers conferred on the Central Government under Rule 57G(2) of the Central Excise Rules, 1944, the Central Government issued order No. TS/36/94-TRU directing that ingots and re-rollable materials of iron or steel purchased from outside and lying in stock on or after the first day of April, 1994 with the re-rollers, availing of the exemption under Notification No. 1/93-Central Excise, dated 28-2-1993 will be deemed to have paid duty, which may be allowed at the rate of Rs. 920 per Metric Tonne. It is the case of the appellant ....
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.... 75,00,000/-. It was further stated that no deemed credit was allowed if the value by way of clearances exceeded Rs. 75,00,000/-. 9. In the said show cause notice, it was alleged that on scrutiny of the records, it appeared that the value of clearances of Rs. 75,00,000/- was exceeded at invoice No. 92, dated 29-12-1994 and the appellant had started paying Central Excise Duty at nominal rate @ Rs. 15% ad valorem. The appellant had not raised deemed credit in R.G. 23A Part II Register and had continuously raised deemed credit in R.G. 23A Part II Register in contravention of the conditions of the said order dated 1-3-1994 issued by the Government of India. It was alleged that the total deemed credit for the period between January, 1995 to March, 1995 worked out at Rs. 3,73,303.80 as against 405.765 M.T. re-rollable scrap obtained by the appellant without duty paying documents. 10. By the said show cause notice, the appellant was directed to show cause as to why Central Excise Duty amounting to Rs. 3,73,303.80 should not be recovered from them under Rule 57-I and the penalty should not be imposed on them under Rule 173-O of the Central Excise Rules, 1944, for the contra....
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....Commissioner (Appeals), Central Excise and Customs, allowed the said appeal filed by the appellant herein. The learned Commissioner (Appeals) adverted to the judgment delivered by CEGAT in case of Collector of Central Excise v. Sri Venkateshwara Steel Industries, 1996 (86) E.L.T. 446 (T) and held that the appellant would be entitled to deemed Modvat credit even after crossing the exemption limit of Rs. 75,00,000/- as long as their specified clearances were within the limit of Rupees Two Crore. The said Tribunal, following the judgment in the case of Collector of Central Excise v. Sri Venkateswara (supra), held that S.S.I. Unit continues to be so even after it crosses Rs. 75,00,000/- turnover in a financial year provided if satisfies criteria set out in Notification No. 1/93-C.E. 15. Being aggrieved by the said order dated 4-2-1997 passed by the learned Commissioner (Appeals), Central Excise and Customs, Pune, the Commissioner of Customs and Central Excise, Aurangabad, preferred an appeal before the Customs, Excise and Service Tax Appellate Tribunal, West Regional Bench, Mumbai. By an order dated 12-2-2004 passed by the said Tribunal, the said Tribunal allowed the appeal fil....
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....ad.) (Paragraphs 13 to 16) (IV) Sood Steel Industrial (P) Ltd. v. Commissioner of Central Excise - 2009 (241) E.L.T. 186 (H.P.) (Paragraphs 13 and 14). 18. It is submitted by the learned Counsel for the appellant that issue involved in this appeal is already concluded by aforesaid four judgments delivered by four different High Courts, which are delivered after interpreting the Notifications in question. He submits that the impugned order passed by the said Tribunal allowing the appeal filed by the Commissioner of Customs and Central Excise, is based on the judgment of the Larger Bench in case of Digambar Foundary (supra), which judgment has been set aside in aforesaid four judgments. He submits that this appeal filed by the appellant, thus, deserves to be allowed. 19. Learned Counsel for the appellant submits that Notification dated 1st March, 1994 clearly indicates that the exemption was available in respect of Deemed Credit Facility under the Notification dated 28th February, 1993 and the duty was to be considered as deemed to have been paid. He submits that the said Notification further clarifies that the small scale industries' limits were allowe....
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....ot eligible for the benefit of Ministry's Deemed Credit Order No. TS/36/94/- TRU, dated 1st March, 1994. The Tribunal in the impugned order, which is subject matter of this appeal, followed the judgment of the Larger Bench of CEGAT, Northern Bench, New Delhi, in case of Digambar Foundary, (supra), and allowed the appeal filed by the respondent. 23. The High Court of Himachal Pradesh at Shimla in the case of Sood Steel Industrial (P) Ltd. v. Commissioner of Central Excise, (supra), considered the Notification dated 28th February, 1993, Chandigarh Central Excise Collectorate Trade Notice dated 25th July, 1994, and Deemed Credit Order dated 1st March, 1994, and held that order of the Larger Bench of CEGAT in case of Digambar Foundary was not correct. It was held that the trade notice limiting the benefit to those manufacturers, whose clearances did not exceed Rs. 75,00,000/-, is totally illegal and against the said Deemed Credit Order issued by the Ministry. It is held that though the department is duty bound by its trade note, the industry is not bound by the same and has a right to challenge the same. It is held that trade note No. 81/94, dated 25th July, 1994 cannot overrid....
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.... and Haryana High Court in case of Accurex Steel Rolling Mills (supra), after following the judgment of Madras High Court in case of Ganesh Steels, (supra), and judgment of Gujarat High Court in case of Vinubhai Steel Co. Pvt. Ltd. (supra), has allowed appeals filed by the assessee and was pleased to set aside order of the Tribunal. 27. The learned Counsel appearing for the respondent also could not point out any contrary view taken by this Court or any other High Court for consideration of this Court. The learned Counsel also could not point out before this Court whether any of these four judgments referred to above, were set aside by the Hon'ble Supreme Court or stayed in any matter. 28. The only contention raised by the learned Counsel for the Revenue for consideration of this Court is that the appellant has not produced any document evidencing payment of duty, and thus, on that ground, the appellant could not have cleared any exemption of payment of duty. In our view, the submission of the learned Counsel for the Revenue is devoid of merit and is contrary to the Notification dated 1st March, 1994, issued by the Central Government, in exercise of the powers confe....