ORDER
V.K. Agrawal, Member (T)
1. In these two appeals filed by M/s. Perfect Spring Pvt. Ltd. and M/S. Precision Engineering Works arising out if two orders-in-appeal, the common issue involved is whether they are liable to pay Central Excise duty at the tariff rate after withdrawing the option to pay the Central Excise duty under Notification No. 9/2000-C.E., dated 1-3-2000.
2. Shri Rajesh Chibber, learned Advocate submitted that both the Appellants manufacture springs and avail of Modvat credit; that they filed a declaration in April, 2000 wherein they claimed benefit of Notification No. 9/2000; that however with effect from 1-7-2000 they filed another declaration wherein they claimed full rate of duty under the Central Excise Tariff and opted out of the Notification No. 9/2000; that the Adjudicating Authority confirmed the demand of duty at the tariff rate also for the period from April to June, 2000 on the ground that they have contravened conditions specified in Para 2(i) of the notification which prohibited from opting out of Notification No. 9/2000; that the Commissioner (Appeals) under the impugned Order has rejected their Appeal holding that the condition was binding on them and once they had opted for the Notification No. 9/2000, they cannot withdraw their option for the remaining part of the financial year. Once they have withdrawn they have fortified their right to claim the concessional rate of duty for the period 1-4-2000 to 30-6-2000 as the exemption was to be applicable only if they fulfil the condition of Para 2(i) of the notification. The learned Advocate, further, submitted that the condition in Para 2(i) of the Notification 9/2000 provides that the manufacturer has the option to avail of the benefit of exemption notification and the option, once exercised, shall not be withdrawn during the remaining part of the financial year; that the notification nowhere provides that if they opted out of the notification, they will be required to discharge the duty liability at the tariff rate. He relied upon the decision in the case of Commissioner of Central Excise, Chandigarh v. Satya Shree Cement Udyog (P) Ltd. [2003 (54) RLT 403 CEGAT]
3. Countering the arguments Ms. Charu Baranwal learned Senior Departmental Representative, submitted that the benefit of Notification No. 9/2000 is available subject to the conditions specified in Para 2 of the notification; that first condition provides that once a manufacturer opts for the benefit of notification, it shall not be withdrawn for the remaining part of the financial year; that once they have violated this condition by opting out of benefit of Notification No. 9/2000, they are not eligible to avail of the concessional rate of duty during the period they were working under the said notification.
4. We have considered the submissions of both the sides. The condition specified in Para 2(i) of the notification reads as under :-
“The exemption contained in this notification shall apply only subject to the following condition, namely, (i) a manufacturer who intends to avail the exemption under this notification shall exercise his option in writing for availing the exemption under this notification before effecting the first clearances and such the option shall be effective from the date of exercise of the option and shall not be withdrawn during the remaining part of the financial year.”
We agree with the learned Advocate that nowhere the notification provides that if a manufacturer after opting to avail the exemption under Notification No. 9/2000 opts out of the same, he has to discharge the duty liability at the tariff rate from the beginning of the financial year. The condition as mentioned in the notification, in our view, prohibits a manufacturer after opting to avail the exemption, from withdrawing the same. He has to discharge the duty liability under the notification. It does not however, make him liable to pay the duty at the tariff rate for the period from which he was working under the notification. Accordingly, the demand of the duty made from them and penalty imposed are not sustainable. Accordingly, we allow both the appeals.