ORDER
Ms. Jyoti Balasundaram, Member (J)
1. In this case duty demand of Rs. 5,86,926.86 has been confirmed on air conditioners manufactured and cleared by the appellants without payment of duty during the financial years 1983-84, 1984-85 and 1985-86. In addition a penalty of Rs. 1 lakh has been imposed.
2. It is the limited contention of the learned Counsel for the appellants that the benefit of notification 64/83 should be extended to clearance in the year 1983-84 and that the benefit of concessional rate of duty in terms of notification 65/83 should be made available to clearances during financial year 1984-85 and 1985-86. He submits that the notification 64/83 provides for exemption from duty on air conditioners in respect of first clearances for home consumption of air conditioners on behalf of one manufacturer from one or more factories up to an aggregate value not exceeding Rs. 2.5 lakhs cleared on or after 1st April in any financial year provided that the aggregate value of the first clearances of the goods has not exceeded Rs. 2.5 lakhs during the preceding financial year and it is his contention that during 1982-83 the value of clearances was less than Rs. 2.5 lakhs. As far as notification 64/83 is concerned although the clearance value during the preceding financial year namely 1983-84 is concerned has exceeded the ceiling limit of Rs. 2.5 lakhs thereby disentitling the appellants from the benefit of notification 64/83, the benefit of notification 65/83 which provides for concessional rate of duty is available since the relevant condition of the notification that the clearance value of in the preceding financial year has not exceeded Rs. 15 lakhs has also been satisfied in essence. However, he fairly admits that benefit of these notifications was not claimed before the authorities below but prays that the benefit may be extended and the duty demanded may be re-quantified after extending the benefit. The objection of the learned DR is that since the appellants did not raise the plea regarding admissibility of the benefit under the above mentioned notifications, it is too late in the day for them to raise this plea at the appellate stage and he therefore prays that the order may be upheld and the appeal be dismissed.
3. We have carefully considered the rival submissions and perused the relevant notifications. We find that the impugned order itself sets out the clearance value of goods during the year 1982-83 is below the ceiling limit of Rs. 2.5 lakhs and therefore the assessee’s submission regarding admissibility of benefit of notification 64/83 to the goods cleared during the year 1983-84 has substance. Similarly we find that the benefit of notification 65/83 is being substance. Similarly we find that the benefit of notification 65/83 is being rightly claimed for clearances during the year 1984-85 and 1985-86 as the order is challenge also gives the details regarding the value of clearances during the preceding financial years, which are relevant for the purpose of this notification, and the figures are below the ceiling limit of Rs. 5 lakhs prescribed in notification 65/83. Therefore we agree with eh appellants that the benefit under these two notifications is admissible to them. However, the duty amount will have to be re-quantified after extending the benefit of the notifications and for this purpose we remand the mater to the jurisdiction Commissioner.
4. The appeal is allowed after setting aside the impugned order.