M/S. Ambala Cements Ltd vs Commissioner Of Central Excise

[Arising out of Order-in-Appeal No. 396  398/ GRM /PCK/2005 dated 11.11.2005 passed by the Commissioner of Central Excise, (Appeals), Delhi ].

For approval and signature:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Hon'ble Shri B. Ravichandran, Member (Technical)

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

M/s. Ambala Cements Ltd. Appellants

Vs.

Commissioner of Central Excise Respondent

Delhi III

Appearance:

Shri Alok Arora, Advocate for the Appellants

Shri Govind Dixit, DR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Hon'ble Mr. B Ravichandran, Member (Technical)

Date of Hearing /decision: 03.09.2015

FINAL ORDER NO. 52815 /2015-EX(DB)

Per B Ravichandran:

The appellants are manufacture of O P Cement liable to Central Excise duty. They were availing benefit of notification No. 1/93-CE dated 28.2.1993 for the initial clearances upto Rs.30 lakhs, thereafter notification No. 24/91-CE dated 25.7.91. They have filed classification list mentioning the said notifications. The same were approved by the department. Later, the demand cum notice was issued to deny the benefit to the appellant on the ground that both the notifications cannot be availed simultaneously. The case was adjudicated by the original authority who dropped the proceedings against the appellant. Revenue took up the matter on appeal to the Commissioner (Appeals) who vide impugned order dated 11.11.2005 set aside the original order and confirmed the demand. Aggrieved by the said order, the appellant is before us.

2. It was pleaded in the appeal that the appellants have filed classification list effective from 14.6.93 which was approved by the jurisdictional Asstt. Collector, Ambala. It was contested that the demand was for extended period. They have also pleaded SSI exemption on concessional rate of duty under notification No. 1/93-CE for the first clearance of Rs.50 lakh is admissible and thereafter the liability to pay duty in terms of notification No. 24/91-CE as amended. The duty demand has to be re-quantified accordingly. In their own case, the CEGAT, New Delhi held to the effect. During the oral submissions, the learned Counsel for the appellant mainly contested the demand on time bar as the classification list has been approved by the department and there is no case for extended period.

3. On merit of the case, they have relied on CESTAT order in the case of Shaktiman Cement (P) Ltd. [2004 (178) ELT 1013 (Tri-Del)]. He contended that for the initial period up to the stipulated value of first clearance of Rs.50 lakh, SSI exemption can be claimed and thereafter they are liable to pay duty in terms of notification No. 24/91-CE.

4. Learned AR reiterated the findings of learned Commissioner (Appeals).

5. Heard both sides. Perused the appeal records carefully.

6. The point of dispute is applicability of notification No. 24/91-CE to the appellant. The second proviso in the said notification stipulates that nothing contained in the said notification shall be applicable to such a cement in respect of which manufacturer avails exemption contained in notification No. 175/86-CE. The same issue came up for decision before this Tribunal in the case of Shaktiman Cement (P) Ltd. (supra). The Tribunals finding in the said case are as under:-

4.?It is clear from a perusal of the above order that an assessee cannot avail of the benefit of Notification No. 5/94 (formerly 24/91) and Notification No. 1/93 in respect of the same consignment. The order has held that after enjoying the benefit of Notification No. 1/93 up to a clearance of Rs. 50 lakhs, the assessee could choose to avail of Notification No. 5/94 in respect of goods cleared subsequently. Thus, the Revenue is right in their submission that for goods sought to be cleared under Notification No. 1/93, effective rate of duty was not to be worked out from the rate of duty stipulated under Notification No. 24/91. This contention of the Revenue is in conformity with the proviso to Notification No. 24/91 which states that nothing contained in this notification shall be applicable to such cement in respect of which a manufacturer avails of the exemption contained in the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 175/86-C.E., dated 1-3-1986 or Notification No. 1/93-C.E., dated 28-2-1993. The Tribunals Final Order No. 599/99-C is also to this effect. The assessee has to choose to have the goods assessed under Notification No. 1/93 or 5/94 - 24/91 but the same consignment cannot be assessed under both the Notifications. The appeal is ordered in the above terms.

7. In view of the above decision, we hold that appellant will be entitled to concessions of the above impugned notifications but the same consignment cannot be the subject of both the concessions.

8. Regarding the appellants plea on time bar, we find that classification list filed by them effective from 14.6.94 clearly indicate the effective rate of duty for the cement cleared by them with the specific claim for concession in notification No. 24/91-CE and notification No. 1/93-CE. Hence, we hold that there is no case for demand for extended period and same is set aside.

9. The appeal is disposed of in the above terms.

(operative part of the order pronounced in the open court )

( Ashok Jindal) Member(Judicial)

( B Ravichandran )

Member(Technical)

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