MALHOTRA METAL INDUSTRIES Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) THE issue involved in this appeal filed by M/s. Malhotra Metal Industries is whether the exemption contained in Notification No. 1/93 -C.E., dated 28 -2 -1993, can be claimed by them when they had already opted for not claiming the exemption under the said notification.

(2.) SHRI J.S. Agrawal, Learned Advocate, mentioned that he is giving up his plea based on the decision in the case of CCE, Baroda v. Cotspun Ltd. 1999 (113) E.L.T. 353 (S.C.). The learned Advocate then submitted that the Appellants manufacture S.S. Circle out of stainless steel flats; that they clear said circles on payment of duty at concesssional rate under Notification No. 1/93 and avail of Modvat credit of the duty paid on inputs under Rule 57A of the Central Excise Rules; that the waste is generated during the process of manufacture of circles which they clear on payment of full rate of duty @15% ad valorem; that as far as waste and scrap of steel is concerned, the Appellants had never opted for not availing the benefit of Notification No. 1/93 subsequently and duty on Waste and Scrap was paid at full rate of duty. The learned Advocate, further, submitted that it is a settled law that it is the option of the assessee to work under the scheme which is most beneficial to him. He relied upon the decision in the case of Shree Cables & Conductors (P) Ltd. v. C.C.E., Bhopal, 1999 (32) RLT 934 (CEGAT) wherein the Tribunal held that there is nothing to show that the Notification No. 1/93 is to be availed of from the first day of the financial year and allowed the exemption under the said Notification from 19 -5 -1995.

(3.) COUNTERING the arguments, Shri Jagdish Singh, Learned D.R., submitted that with effect from 1 -4 -1994, a clause was inserted in Notification No. 1 /93 which provides that a manufacture shall have an option for not availing of the benefit of the exemption in Paragraph 1 of Notification No. 1/93 and to pay duty of excise at the rate applicable to the specified goods but for the exemption subject to the condition that he shall pay duty at the rate applicable on all subsequent clearance of specified goods in a financial year in which such date of option falls; that as the appellants have opted full rate of duty on waste and scrap, a specified goods under the notification, they have exercised their option not to avail of exemption and accordingly full rate of duty has to be paid on circles, which are also specified goods under Notification No. 1/93. He also mentioned that recently the Appellate Tribunal has decided the same issue in the case of Uttam Industries.