PRAGATI CONCRETE UDYOG Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THE impugned Order has been passed pursuant to the Order of remand of the Tribunal [Final Order Nos. 154 -155/2001 -D, dated 11 -7 -2001 in appeal Nos. E/2850/91 -D and E/994/2001 -D. The issue in dispute was the claim of the appellant for small scale exemption in respect of goods cleared during the period 21 -3 -90 to July 1991. Although the dispute raised in the show cause notices was that the assessee had not produced permanent Small Scale Industries registration certificate issued by the Directorate of Industries, Delhi (which certificate is a requirement under Notification No. 175/86 for the purposes of small scale exemption), this Tribunal noted that the requirement for the said certificate would not arise in a case "where a manufacturer has been availing of the exemption under this notification during the preceding financial year" and therefore remanded the case with the following direction : -

(2.) THE submission of the appellant is that the impugned Order has been passed contrary to the facts of the case relating to availing of exemption by the appellant during the preceding financial year. It is being pointed out that the appellant had started its production in October 1988 and had been availing of small scale exemption from the beginning and it had obtained Central Excise license. The fact of its availing of exemption remains settled by adjudication Order No. 73/1990 dated 28th March 1990 of the jurisdictional Assistant Collector. It is being pointed out that, though under that Order a penalty of Rs. 1,000/ - was imposed on the appellant, no duty demand was made in regard to the clearances made without payment of duty. During the hearing it has been submitted that these facts were pointed out to the lower authorities also and those authorities have also accepted these facts. The submission of the learned Counsel is that since the appellant had been availing of the exemption during the preceding financial year, it was not open, in the present proceedings, to go into the correctness or otherwise of the exemption already availed of during a period prior to the period of the notices under consideration.

(3.) AS already noted, the scope of the remand Order was "to determine whether the appellants have availed of the benefit of exemption under Notification No. 175/86 and then proceed to decide whether the benefit of Notification will be available to them during the impugned period". On the question of availing of the exemption, the appellant assessee's contention was that it had been availing of the exemption and the exemption so availed had not been disturbed even under the Order of adjudication dated 28th May 1990 when a penalty of Rs. 1000/ - was imposed on the appellant without making any duty demand. This position remains noted by the lower authorities also. The impugned Order has noted as under on this issue.