Vs Commnr. of Central Excise Haryana
Date : 21/02/2011
These appeals were
called on for judgment today. For Appellant (s) Ms. Neeru Vaid, Adv. For
Respondent(s) Mr. B. Krishna Prasad, Adv.
Hon'ble Dr. Justice Mukundakam
Sharma pronounced the Judgment of the Bench comprising His Lordship and Hon'ble
Mr. Justice Anil R. Dave. Delay condoned. The appeals are dismissed in terms of
the signed reportable judgment which is placed on the file.
(KUSUM SYAL) (RENU
M/s. Uttam Industries
Vs Commnr. of Central Excise, Haryana
The issue that falls for consideration in these appeals is to the entitlement or
otherwise of the appellants to the benefit of Notification No. 180/88 CE dated 13.05.1988
as amended by notification No. 135/94-CE dated 27.10.1994 where under exemption
available was made conditional to the non-availment of Modvat Credit of the
duty paid on the inputs.
order to record a definite finding on the aforesaid issue it would be necessary
to set out certain facts leading to filing of the present appeals.
appellants are engaged in the manufacture of aluminum circles and utensils. The
appellants filed classification list with effect from 27.10.1994 whereby the appellants
claimed benefit of Notification No. 1/93 dated 28.02.1993 as well as benefit of
Notification No. 135/94-CE dated 27.10.1994. A show cause notice was issued to the
appellants on 18.01.1995 contending inter alia that the benefit of Notification
dated 27.10.1994 was not available to the appellants. Subsequent to the same a
demand of Rs. 5,18,652/- was confirmed by way of denial of the aforesaid benefits
of Notifications vide order passed on 01.11.1995.
aggrieved by the aforesaid order passed in the order-in-original dated 01.11.1995,
the appellants filed an appeal before the Commissioner Central Excise (Appeals)
contending inter alia that the appellants fulfilled conditions of both the
Notifications, namely, the one issued on 13.05.1988 as amended by notification dated
27.10.1994 and also of the Notification dated 28.02.1993 and since both the aforesaid
notifications are independent it cannot be said that benefits under both the notifications
cannot be availed by the appellants and that rather one can avail both the benefits
Commissioner Central Excise, who was the appellate authority held that the appellants
had not fulfilled the stipulated conditions laid down in Notification dated 13.05.1988,
as amended as the appellants availed Modvat Credit and therefore they are not
entitled to the benefit of the said Notification. It was also held by the appellate
authority that the appellants did not place any material on record to show that
they had fulfilled conditions of the Notifications for availing benefit of
aggrieved by the aforesaid order passed on 31.03.2003 the appellants filed an appeal
before the Customs, Excise and Service Tax Appellate Tribunal. By Judgment and
Order dated 10.03.2004 the aforesaid appeal filed by the appellants was also dismissed
holding inter alia that in this case it is not disputed by the appellants that
they were availing the credit in respect of the inputs used in the manufacture
of the aluminum circles and therefore they are not entitled to the benefit of the
Notification granting exemption.
aggrieved the appellants filed the present appeals on which we heard learned counsel
appearing for the parties, who had taken us through various orders passed by the
different authorities and also through other connected records.
going through the records it is clearly established that the appellants are availing
Modvat Credit in respect of inputs used in the manufacture of aluminum circles.
The order-in-original, the orders passed by the appellate authority and as also
by the Tribunal concurrently held that admittedly the appellants are availing such
Modvat Credit in respect inputs used in the manufacture of the aluminum circles.
Consequently, the appellants are not entitled to avail the benefit of
Notification granting exemption inasmuch as for availing such benefit under the
said notification the pre-condition is that the aluminum circles are to be cleared
for intended use in the manufacture of utensils and no credit of duty paid on
inputs has been taken in respect of the inputs used in the manufacture of the
aluminum circles. All the aforesaid three authorities below having held concurrently
in the same manner as stated hereinabove. Such finding has become final and it is
not open to the appellants to challenge the same. We also hold that the appellants
failed to bring any evidence on record that the appellants were not availing of
Modvat Credit on the same goods in respect of which they were also claiming benefit
of exemption under Notification.
being the position we are not inclined to interfere with the aforesaid finding of
fact recorded by the Tribunal and the authorities below on the aforesaid issue.
is by now a settled law that the exemption notification has to be construed
strictly and there has to be strict interpretation of the same by reading the
same literally. In this connection reference can be made to the decision of this
Court in Collector of Customs (Preventive), Amritsar vs. Malwa Industries Limited
reported at as also to the decision in Kartar Rolling Mills vs. Commissioner of
Central Excise, New Delhi reported at (2006) 4 SCC 772 wherein also it was held
by this Court that finding recorded by the Tribunal and the two authorities
below are findings of fact and such findings in absence of evidence on record to
the contrary is not subject to interference. In order to get benefit of such notification
granting exemption the claimant has to show that he satisfies the eligibility criteria.
Since the Tribunal and the authorities below have categorically held that the
appellant does not satisfy the eligibility criteria on the basis of the
evidence on record, therefore, we hold that the said exemption Notification is not
applicable to the case of the appellants.
do not find any merit in these appeals, therefore, we dismiss the same but
leaving the parties to bear their own costs.
[Dr. Mukundakam Sharma]
[ Anil R. Dave ]