- (1.) This appeal has been preferred by the assessee under Section 35G of the Central Excise Act, 1944 (in short "the Act") against the order dated 1.3.2004 (Annexure P-7) passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as "the Tribunal") claiming the following substantial questions of law:- (i) Whether the benefit of deemed credit order no. TS-36/94-TRU dated 1.3.1994 continues to be admissible to SSI unit even after crossing the exemption limit slab of Rs. 75 lacs in terms of notification no. 1/93-CE dated 28.2.1993 as amended (ii) Whether notification No. 1/93-CE dated 28.2.1993 and deemed credit order dated 1.3.1994 have been correctly interpreted by the Tribunal
(2.) A few facts necessary for adjudication of the instant appeal as narrated therein may be noticed. The appellant is engaged in the manufacture of goods falling under Chapter 72 of the Central Excise Tariff Act, 1985 and had been availing the exemption of notification No. 1/93-CE dated 28.2.1993 (Annexure P-1). It was also availing the benefit of Modvat Credit of duty paid on inputs used in the manufacture of their final products. Further, the appellant had also been availing the benefit of deemed credit on re-rollable material of iron or steel as per Government of India order dated 1.3.1994. As per the said order, the facility of deemed credit @ Rs. 920/- per metric tonne without production of documents evidencing the payment of duty was allowed qua ingots and re-rollable materials of iron or steel purchased from outside and lying in stock on or after the 1 st day of April, 1994 with the re-rollers, availing of exemption under notification, Annexure P-1. A show cause notice dated 22.6.1995 was issued to the appellant for recovery of deemed credit of Rs. 2,12,706.60P availed during the period from 1.12.1994 to 31.3.1995 for wrongly availing deemed credit of duty on re-rollable material. The adjudicating authority vide order dated 17.7.1997 (Annexure P-3) dropped the proceedings against the appellant on the basis of the decision of the Tribunal in CCE, Coimbatore v. Sri Venkateshwara Steel Industries,1996 86 ELT 446 wherein it was held that the facility of Modvat Credit on re-rollable materials would be available to the SSI units even after it crosses the turn over of Rs. 75 lacs in the Financial year. Feeling aggrieved, the department filed an appeal on 22.7.1997 (Annexure P-4) before the Commissioner (Appeals), who vide order dated 27.5.2003 (Annexure P-5) rejected the appeal. Still dissatisfied, the department filed an appeal on 25.8.2003 (Annexure P-6) before the Tribunal. The Tribunal vide order dated 1.3.2004 (Annexure P-7) allowed the appeal and set aside the order dated 27.5.2003 (Annexure P-5) passed by the Commissioner (Appeals). Hence, the present appeal.
(3.) Learned counsel for the appellant submitted that the appellant was entitled to avail the benefit of deemed credit of duty on the re-rollable material used as inputs in terms of the order dated 1.3.1994 of Government of India, Ministry of Finance even after crossing the exemption limit of Rs. 75 lacs, but the Tribunal has wrongly denied the claim of the appellant by mis-interpreting the notification No. 1/93-CE dated 28.2.1993 and the deemed credit order dated 1.3.1994. It was further submitted that the order passed by the Tribunal is erroneous and is liable to be set aside.;