KALU ALIAS BHAG CHAND Vs. KISHAN LAL

JUDGEMENT

(1.) This appeal, by the revenue, has been filed against the order of the Tribunal dated 1st September 2004, dismissing the appeal of the revenue, which was filed against the order of a Commissioner of Central Excise, dated 26-8-2002. The appeal was admitted vide order dated 22-5-2006, by formulating two substantial questions of law as under :-

(2.) The learned Commissioner, by said order dated 26-8-2002, decided the controversy, relating to availability of exemption, from excise duty, for the two spell of times; being 1-3-1994 to 17-5-1995, and for 18-5-1995 to 7-11- 1995, and in Para 22, held that the duty is demandable from the assessee, in respect of sewing thread of polyester staple fiber, manufactured and cleared without payment of duty, during the period from 1-3-1994 to 17-5-1995. For arriving at this finding, it was considered, that the project is not exempt from payment of excise duty. Then, for the subsequent period, from 18-5-1995 to 7-11-1995, it was considered, that Notification No. 35 of 1995 dated 16-3-1995 was amended vide Notification No. 84 of 1995 dated 18-3-1995 (sic) (18-5-1995), and by that amendment specified processes of all yarns falling under Chapter 55 were covered within the scope of aforesaid notification for exemption, and therefore, relying upon another judgment of the Tribunal in Ayyappa & Co. V/s. CCE, Coimbatore, 1998 103 ELT 355, held, that the assessee was entitled to the benefit of Notification No. 35 of 1995, as amended by Notification No. 84 of 1995 dated 18-3-1995, and the demand for that period was found to be not sustainable. Consequently, the order of confiscation etc., were also set aside.

(3.) From these two parts of the order, two appeals were filed, before the Tribunal. The revenue filed the appeal, with respect to the findings for the period 18-5-1995 to 7-11-1995, while the assessee filed appeal, with respect to the period 1-3-1994 to 17-5-1995. The assessee's appeal, being Appeal No. 2383/02, has been allowed by the final order dated 29-7-2003, by finding, that Chapter Note was introduced in Chapter 55 w.e.f. 26-5-1995, which provided that conversion of any form of yarn into another form of yarn amounts to manufacture, and that, during the period in question, there was no such Chapter Note, and therefore, the activity of the assessee, was not found to be amounting to manufacture. For this proposition, learned Tribunal relied upon other order of the Tribunal dated 27- 12-2002, passed in Appeal of CCE V/s. Anand Threads . Admittedly, this order, dated 29-7-2003, has not been appealed by the revenue any further, and it has become final.