ORDER
G.R. Sharma, Member (T)
1. Shri M.L. Gupta, ld. Consultant, narrating the facts of the case submits that the appellants have two units one at Mayapuri and the other at Mangolpuri. That in the Mayapuri Unit they are manufacturing electric motors whereas at the Mangolpuri Unit they are manufacturing electric fans. That in respect of electric fans they were availing Modvat credit whereas in respect of electric motors they were availing exemption from duty as SSI unit under Notification No. 175/86. The Department alleged that since the appellant is a small scale unit and is entitled to the benefit of exemption, therefore, they cannot avail simultaneously the credit on inputs due under the Modvat scheme. The ld. Consultant submitted that identical issue was considered by this Tribunal in the case of Faridabad Tools Pvt. Limited v. Collector of Central Excise, reported in 1993 (63) E.L.T. 759. The ld. Consultant submitted that the Tribunal in that case had held :
“Following the ratio of its earlier two judgments, namely, Swaraj Paints Industries v. Collector reported in 1991 (52) E.L.T. 594 and Abilash Rubber Products v. Collector, 1991 (56) E.L.T. 168 had held that since the respondents had claimed the benefit of Notification No. 175/86 in respect of dies whereas they had claimed Modvat benefit in respect of raw aluminium casting under subheading 8714.00 i.e. they were not claiming both benefits in respect of the same items.”
Therefore, they should be given the full benefit of the exemption as would be available otherwise, as if the Modvat credit is not being availed of and the appeal was allowed. Against this order of the Tribunal the Collector of Central Excise went in appeal before the Hon’ble Apex Court. The Apex Court had dismissed the appeal filed by ld. Collector of Central Excise. Thus, the order according to the ld. Consultant passed by this Tribunal has been confirmed by the Apex Court. ld. Consultant also cited another order of this Tribunal in the case of Commissioner of Central Excise, Meerut v. Nova Vision Electronics (P) Ltd. – 1996 (87) E.L.T. 430. He submitted that in this order the Tribunal has held that Modvat credit and SSI Exemption is availed simultaneously on different goods i.e. Modvat credit is permissible in respect of one commodity while the assessee is permitted to avail SSI Exemption in respect of another commodity. The ld. Consultant submitted that the facts of the case are exactly identical to the facts of the cases cited and relied upon by him and therefore prays that looking to the decisions cited and relied upon by him, the appeal may be allowed.
2. Shri Satnam Singh, ld. SDR, reiterated the findings of the lower authorities.
3. Heard the submissions of both sides. We find that the Tribunal in some of the recent cases have been consistently holding that the option to either opt for availing exemption as a SSI unit or availing Modvat credit squarely lies with the assessee. Whenever, an assessee is manufacturing two or more items falling under different Chapter Headings, then the option is with the assessee to avail Modvat credit on one item and exemption as an SSI unit on the other. This view gets support from the ruling of the Apex Court in the case of Faridabad Tools Private Limited v. Collector of Central Excise, supra, in which the Hon’ble Apex Court confirmed the order of the Tribunal.
4. Having regard to the above decisions and following the ratio thereof we allow the appeal. Consequential relief if any shall be admissible to the appellants in accordance with law.