ORDER
K.K. Bhatia, Member (T)
1. The brief facts of this case are that Ludhiana Steels Ltd., Ludhiana inter alia manufactured oxygen gas falling under sub-heading No. 2804.11 in a part of their factory. The unit of the factory which manufactured oxygen gas, was taken over by the appellants – Bharat Steel Rolling Mills in February, 1995 on lease. The lessor, Ludhiana Steels Ltd. were themselves registered with the Central Excise Department for the manufacture of excisable goods, namely iron & steel products falling under Chapter 72. Prior to February, 1995, the duty was being paid at full rates by them on the clearances of their goods, as their clearances of all excisable goods had exceeded Rs. 3 crores during the preceding financial year. Bharat Steel Rolling Mills after taking over the unit manufacturing of oxygen gas in February, 1995 (financial year 1094-95), started clearing the gas at ‘NIL’ rate of duty claiming the exemptions under Notfn. No. 1/93-CE., dated 28-2-1993. The Excise Authorities however felt that SSI exemption under this notification was not available to the appellants since Clause 3(b) of the notification stipulated that the SSI exemption under this notification was not available if aggregate value of clearances of all excisable goods for home consumption from any factory by one or more manufacturers had exceeded Rs. Three crores during the preceding financial year. The departmental authorities also noticed that Ludhiana Steel Ltd. and Bharat Steel Rolling Mills, had a common power connection and the two units therefore did not appear to be two separate entity. Accordingly, the appellants were issued two show cause notices dated 26-9-1995 and 25-3-1996 calling upon them to show cause as to why the duty amounting to Rs. 2,71,917.00 for the clearance of the goods amounting to Rs. 13,59,585/- during the period from 3/95 to 8/95 at ‘NIL’ rate of duty and the duty amounting to Rs. 3,13,856.00 on the clearances of the goods amounting to Rs. 15,69,280.00 during the period from 9/95 to 2/96 at ‘NIL’ rate of duty should not be recovered from them under Section 11A of the Central Excise Act, 1944 and why a penalty should not be imposed on them under Rule 173Q. On considering the case of the party, the Deputy Commissioner of Central Excise (Tech.), Chandigarh-I vide his Order dated 21-1-1998 confirmed the aforesaid amounts of duty on the party and further imposed a penalty of Rs. 50,000/-on them. On the similar facts and grounds, the Asst. Commissioner of Central Excise, Division-II, Ludhiana in a separate Order dated 4-1-1999 confirmed a duty of Rs. 38,970/- and further imposed a penalty of Rs. 20,000/-on the party for the clearance effected in March, 1996.
3. The party filed appeals against the above orders but the same are rejected by Commissioner (Appeals), Chandigarh vide his common order dated 26-9-2000. The present appeals are against the impugned order of Commissioner (Appeals). The appellants have also sought to adduce some additional evidence by way of a miscellaneous petition, which is also taken up for disposal along with the appeals. We have heard Shri K.K. Anand, Advocate for the appellants and Shri M.D. Singh, SDR for the respondents and carefully considered the submissions made by them. As already stated above the unit producing oxygen gas was a part of Ludhiana Steels Ltd., Ludhiana who were paying duty at the full rates on the iron & steel products as well as the oxygen gas manufactured and cleared by them during the year 1994-95. During this year the turnover of Ludhiana Steel Ltd. exceeded Rs. 3 crores. In February, 1995 the unit manufacturing oxygen gas was transferred to the present appellants on lease. It has rightly been observed in the orders passed by the original and the lower appellate authority that as per Clause 3(b) of Notfn. No. 1/93-C.E., dated 28-2-1993, the exemption under notification is not available to a manufacturer if the aggregate of the value of the clearances of all excisable goods for home consumption from any factory, by one or more manufacturers or by a manufacturer from one or more factories had exceeded Rs. 3 crores during the preceding financial year. Since the unit producing oxygen gas during the year 1994-95 was a part and parcel of Ludhiana Steel Ltd., Ludhiana and further since the learances of Ludhiana Steel Ltd. exceeded Rs. 3 crores (1994-95), the case of the appellants is hit by the above exclusion clause of the notification and the exemption to the oxygen gas unit is not admissible during the year 1995-96. The contention of the appellants that for the purpose of computing the clearances during the preceding financial year viz., 1994-95, the clearances by the oxygen producing-unit alone should be reckoned cannot be countenanced in view of the
facts obtaining in the case and the expression used in Clause 3(b) of the ex
emption Notfn. No. 1/93-C.E. In view of this analysis, the appellants have
rightly been denied the SSI exemption under this notification. However,
since the present is a case of only a wrong interpretation of the exemption
notification, by the appellants which does not appear to us intentional, we do
not feel that they should be subjected to penalty. The penalties of Rs. 50,000/- and Rs. 20,000/- imposed on the appellants are therefore set aside. But for this modification, the appeals otherwise fail and the same are accordingly dismissed. The miscellaenous petition filed by them is also disposed of in the same terms.