ORDER
C.N.B. Nair, Member (T)
1. The present appeal of the Revenue is directed against the following order of the Commissioner (Appeals) with regard to rate of duty applicable on cement cleared by the respondent.
5. I have gone through the memorandum of appeal alongwith Hon’ble Tribunal remand order dated 17.9.1998. The basic issue in this case pertains to whether the respondents can avail benefits of Notification No. 175/86-CE 1/93-CE with Notification No. 24/91-CE dated 25.7.1991, as amended. Notification No. 24/91-CE dated 25.7.1991, as amended, provided concessional rate of duty to Portland cement manufactured in a factory as detailed in the table to the said Notification. Second proviso to the said Notification i.e. Clause (b) provided interalia, that nothing contained in that notification shall be applicable to such cement in respect of which a manufacturer avails of the exemption contained in the Notification No. 175/86-CE dated 1.4.1986 as amended. The Hon’bJe Tribunal in the final order No. 599/99-C dated 14.7.1999 has held on the same issue that there is nothing wrong if the respondents avail of Notification No.. 24/91-CE in respect of cement cleared after Rs. 50 lakhs up to which the manufacturer had availed the Notification No. 1/93-CE.
6. Respecting the law laid down by the Hon’ble Tribunal in the said case I, hold that the classification filed by the respondents was correctly approved by the appellants. Accordingly, appeal filed by the appellant is rejected and approval of impugned classification list is upheld.
2. The present appeal points out that the Commissioner has incorrectly applied the ratio of Tribunal’s final order No. 599/99-C dated 14.7.1999. We read the grounds of appeal:
(i) The Commissioner (Appeals) has related upon the Hon’ble Tribunal Final Order 599/99-C dated 14.7.1999 passed in the case of MA Mamta Cement Co. v. CCE Delhi wherein the Tribunal has held that there is nothing wrong if the manufacturer avails Notification No. 24/91-CE dt. 25.7.1991 in respect of Cement cleared after Rs. 50 lakhs up to which the manufacturer has availed the Notification No. 1/93-CE but in this case the party had started their clearances of cement under Notification No. 2491-CE dated 25.7.1991 simultaneously alongwith Notification No. 1/93-CE dt. 28.2.1993 even before the stipulated limit of Rs. 50 lakhs. The party paid duty @ Rs. 185/-PMT 10% Adv. Whereas they were required to pay duty either @ Rs. 330/-PMT – 10% Adv. (under Notification No. 1/93-CE) or @ Rs. 185/- PMT (under Notification No. 24/91-CE) on the clearances effected after crossing the limit of Rs. 30 lakhs.
(ii) The Commissioner (Appeals) has failed to take into consideration the fact of simultaneous availment of both the Notifications i.e. 24/91-CE dt. 25.7.1991 and 1/93-CE dt. 28.2.1993 by the party which is contrary to the above said decision of the Hon’ble Tribunal.
3. We have perused the records and heard both sides. The dispute is whether the Commissioner has correctly applied Tribunal’s Final Order No. 599/99-C dated 14.7.1999. The operative part of the Tribunal order reads as under:
5. We find that the option for opting for a particular Notification when there arc more than one notifications on the same issue, lies with the assessee and was decided by the Tribunal in favour of the assessee.
6. In so far as the various clauses of Notification No. 5/96 are concerned, we find that these clauses were examined in general by this Tribunal and the Tribunal came to the conclusion that the assessee was entitled to enjoy the benefit of Notification No. 1/93 upto clearances of Rs. 50 lakhs and after that he was entitled to the benefit of Notification No. 5/94. Following the ratio of this decision of the Tribunal, we hold that the appellant to entitled to the benefit of Notification No. 5/94 on clearances beyond Rs. 50 lakhs. In this view of the matter, the appeal is allowed with consequential relief, if any, in accordance with law.
4. It is clear from a perusal of the above order that a that an assessee cannot avail of the benefit of Notification No. 5/94 (formerly 24/91) and Notification No. 1/93 in respect of the same consignment. The order has held that after enjoying the benefit of Notification No. 1 /93 upto a clearance of 50 lakhs, the assessee could choose to avail of Notification No. 5/94 in respect of goods cleared subsequently. Thus, the Revenue is right in their submission that for goods sought to be cleared under Notification No. 1/93, effective rate of duty was not to be worked out from the rate of duty stipulated under Notification No. 24/91. This contention of the Revenue is in conformity with the proviso to Notification No. 24/91 which states that “nothing contained in this notification shall be applicable to such cement in respect of which a manufacturer avails of the exemption contained in the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 175/86-CE dated 1.3.1986 or Notification No. 1/93-CE dated 28.2.1993”. The Tribunal’s Final Order No. 599-99-C is also to this effect. The assessee has to choose to have the goods assessed under Notification No. 1/93 or 5/94 – 24/91. But the same consignment cannot be assessed under both the Notifications. The appeal is ordered in the above terms.
(Pronounced 19.10.2004)