COMMISSIONER OF CENTRAL EXCISE Vs. CHETNA ENGINEERING

JUDGEMENT

(1.) THE issue involved in this appeal filed by Revenue is whether the benefit of Notification No. 175/86 -CE., dated 1 -3 -1986 was available to the excisable goods cleared by the respondents during the financial year 1992 -93 (from 1 -4 -1992 to 21 -5 -1992).

(2.) WHEN the matter was called no one was present on behalf of the Respondents. They have, however, submitted written submissions and have requested to decide the appeal on the basis of cross objection filed by them as well as written submissions made by them. We, therefore, heard Shri R.K. Sharma, learned SDR, and perused the records. The Asstt. Collector had approved the classification list filed by the Respondents in which they had claimed the benefit of Notification No. 175/86, as amended. The appeal filed by the Department was rejected by the Collector (Appeals), under the impugned order, holding that the proviso inserted by Notification No. 55/92, dated 31 -3 -1992 in Notification No. 175/86 would affect only those manufacturers who had at some time in the past had availed of the benefit of Notification No. 175/86 in terms of Clause (a) of the proviso to para 4 and the eligibility to the benefit of Notification in terms of Clause (b) of proviso would not be affected merely on account of the fact that in the previous years, the value of clearances had exceeded Rs. 7.5 lakhs.

(3.) THE Respondents have submitted that the authorization by Collector to file the appeal does not indicate that the impugned order is 'not legal or proper' which is a prerequisite under Section 35B(2) of the Central Excise Act and as such appeal filed by Revenue deserves to be rejected. Reliance has been placed on the decision in C.C.E., Vadodara v. Rohit Pulp Paper Mills, 1998 (101) E.L.T. 5 (S.C), C.C.E., Jaipur v. Shree Ram Rayons, 1999 (106) E.L.T. 225 (T), C.C.E., Madras v. Touch Wood, 1999 (106) E.L.T. 85 (T) and C.C.E., Chennai v. Enfield India Ltd., 1999 (34) RLT 340 (T). They have further submitted that they were availing SSI exemption under Notification No. 77/85, dated 17 -3 -1985 prior to 1 -3 -1986 and therefore, by virtue of Clause (b) of Proviso to para 4 they were eligible to the exemption from March, 1986 onwards; that they had all along availed exemption under Clause (b) and never claimed under Clause (a) of the first Proviso to para 4; that only those manufacturers, who had been availing of the exemption by virtue of Clause (a) of the first proviso, were debarred by amendment effected by Notification No. 55/92. They placed reliance on the decision in C.C.E, v. Bharat Automatics, 1999 (112) E.L.T. 387 (T) and C.C.E., Mumbai v. Assam Timbers, 1999 (112) E.L.T. 226 (T).