CCE Vs. GANPATI TAR UDYOG

JUDGEMENT

(1.) In these two appeals, filed by the Revenue, the issue involved is whether it is open to the respondents to avail or not to avail the benefit of Small Scale Exemption Notification No. l/93 -CE dated 28.2.1993.

(2.) When the matter was called, no one was present for the respondents nor was there any request to adjourn the matter in spite of notice issued to them. We also heard Smt. Charul Barnwal, learned SDR for the Revenue and perused the records. It is the contention of the Revenue that exemption under Notification No. 1/93 CE was available to both the respondents and instead of availing of exemption under the said Notification, they cleared the goods on payment of duty at various rates after availing the MODVAT Credit of the duty paid on the inputs. She had also contended that the Commissioner (Appeals) has followed number of decisions of the Tribunal against which a Reference Application has been filed by the Revenue and has also observed that filing of a Reference Application does not come as a stay of operation of Tribunal's Order. According to Revenue the Commissioner (Appeals) instead of dismissing the appeal filed by them should have awaited for the outcome of the decision in the reference matters.

(3.) We observe that both the lower Authorities have followed various decisions passed by the Tribunal wherein it has been held that it is the option of the assessee to claim or not to claim the benefit of Exemption Notification and the assessee is not to be denied the option of claiming the MODVAT Credit. Some of the decisions, relied upon by the lower Authorities, are - (i) M/s. Garg Industries v. CCE ; and (ii) CCE v. Bhag Polymers . In the impugned Order, the Commissioner (Appeals) has also mentioned that in the case of M/s. Ganpati Tar Udyog, one of the respondents, the Tribunal has decided the same issue in their favour vide Final Order No. A/554 -561/97 -NB dated 2.5.1997. The only ground, on which the Revenue has filed these appeals, is that the Commissioner (Appeals) should have waited for the outcome of decisions of the Reference Applications. There is no force in this ground at all as the Commissioner (Appeals) has decided the matter on the basis of the decision of the higher Appellate Forum, the decision which has not been set aside or stayed. It has been held by the Calcutta High Court in the case of Sancheti Food v. Union of India that "the mere fact that the application under Section 130(3) of the Act has been filed, does not mean that that acts as a stay of the operation of the Judgment and order of the Tribunal." We also observe that the Notification No. l/93 -CE is a conditional Notification as the benefit of the said Notification is available only subject to the fulfillment of the conditions specified therein. There is nothing on record to show that both the respondents fulfil all the conditions stipulated in the Notification. However, in any case, it is the option of the assessee to opt or not to opt for a particular Notification. Thus, we find no merit in the appeals filed by the Revenue which are rejected. (Operative part of order pronounced in open Court on 26.10.2004).