JUDGMENT
K.K. Usha, J.
1. In these appeals the short issue that arises for consideration is whether the appellant is entitled to the benefit of Notification No. 29/96 dated 3.9.96 and claim deemed credit in respect of the inputs used in the manufacture of the grey fabric, which is being processed by the appellant.
2. In the order under challenge in Appeal No. E/2434/2001-D such deemed credit was denied to the appellant for the reason that, appellants’ final product coming under sub-heading 5801.22 is not covered by the above-mentioned notification. The learned Counsel for the appellant brought to our notice corrigendum dated 3.9.96 to Trade Notice No. 91/96 by which final products falling under Heading Nos. 5801 and 5802 were included in the list of final product in Notification No. 29/96. When the heading 5801 as such is included, there is no justification for denial of benefit claimed for the reason that sub-heading 5801.21 is not specifically mentioned. The revenue has no case that the final product will not come under Heading 5801. We, therefore, uphold the contention of the appellant and hold that the appellant is entitled to the benefit of Notification No. 26/96. However, the refund of the amount claimed by the appellant will be subject to verification by the Assistant Collector on the question of unjust enrichment.
3. In the order impugned in Appeal No. E/2092/01-D the appellant was denied the benefit of Notification No. 29/96 for the reason that grey fabric as such is not included as an “input” in the Notification qualifying for such benefit. It is the contention of the appellant that the input referred as item No. 2 in column 2 of the notification have gone into in the manufacture of grey fabric. Therefore, the appellant is entitled to deemed credit on the inputs referred under colum No. 2. This contention of the appellant is supported by Board’s Circular No. 243/77/96 dated 3.9.96. The relevant portion of the notification reads as under:–
“4.4. Independent Processors
The rate of deemed credit in case of fabrics other than 100% cotton fabrics, has been increased from 50% to 70% which is in lieu of duty paid on inputs by such processors except that on capital goods. In other words independent processors will get credit of duty paid on capital goods on actual basis. For all other inputs no actual credit will be permitted. In the case of cotton fabrics in deemed credit at 50% is also inclusive of duty paid on dyes, chemicals etc.
Rate structure for Independent processor as well as multi locational mills.
Description
BED
Deemed credit as a % of
BED
AED
1.
100% cotton fabric upto a value of Rs. 30/sqm
5%
50%
5%
2.
100% cotton fabric of value exceeding Rs. 30/sqm
12%
50%
8%
3.
All other fabrics
12%
70%
8%
4.5, Deemed credit is in lieu of duty paid on fibres, yarns, dyes, chemicals, consumables and packaging materials”.
4. In the light of the above circular of the Board there can be no doubt on the correctness of the claim put forward by the appellant. We, therefore, set aside the order impugned and allow this appeal also.