ORDER
K. Prakash Anand, Member (T)
1. The un-disputed facts of the case are that the respondents are manufacturers of bolts and nuts, who applied for Central Excise Licence around October/November, 1975 and this was granted to them on 17-1-1976. On 18-11 -1976, when a Central Excise Officer visited the manufacturing premises, he observed that the respondents had cleared bolts and nuts valued at Rs. 77,539.99 during the period 1-4-1976 to 13-11-1976. They were, therefore, charged for not opting for the simplified procedure from 1 -4-1976 and in the orders passed, as a result of the Show Cause Notice issued to them, they were denied the benefit of Notification No. 158/71, dated 26-7-1971, duty of Rs. 7,753.99 was demanded and a penalty of Rs. 100/- imposed. When the matter went up in appeal before the Collector (Appeals), he upheld the penalty imposed on the respondents for not following the physical control procedure, but he set aside the demand of duty on the ground that the benefit of Notification No. 158/71 could not be denied to the respondents. It is against this order of the Collector (Appeals) that the department is now before us.
2. We have heard Shri L.C. Chakraborthy, JDR on behalf of the department and Shri K.R. Chopra, consultant on behalf of the respondents.
3. Shri Chakraborthy submits that the order-in-appeal is not legal and proper as in accordance with 2nd proviso to Notification No. 14/76-C.E., dated 23-1 -1976, manufacturers of specified goods eligible for simplified procedure, but working under Chapter V of Central Excise Rules, 1944 would not be entitled to exemption, if the same is based on clearances during a financial year. Central Excise Tariff Item No. 52, which covers bolts and nuts is included in the perview of this notification. It is conceded that the respondents being a small scale manufacturers of bolts, nuts and screws were eligible for the simplified procedure, but they had not opted for the simplified procedure, nor they worked under Chapter V relating to physical control. Accordingly, it is submitted that the benefit of Notification No. 158/71, dated 26-7-1971 could not be extended to the respondents.
4. Shri K.R. Chopra presents his case briefly and says that his case is fully vindi- cated by the orders passed by the Collector (Appeals).
5. We have carefully considered the facts of the case and the submissions made before us. The Second proviso to Notification 14/76 reads as follows :-
“Provided that no exemption granted under any other notification issued under Sub-rule (1) of Rule 8 of the said Rules, from the whole of the duty leviable on any of the excisable goods [specified under Sub-rule (1) of the said Rule 173 RA and the duty on which is payable by the manufacturer thereof in the manner provided for in Rule 173 RD or in accordance with the provisions of Chapter V of the said Rules] if removed in a financial year, shall apply to such goods during the 3-year block period.”
The Collector (Appeals) has upheld the submission made by the appellant before him that the purpose of the second proviso to Notification 14/76 is to avoid the double benefit which could result from an assessee referred to in first proviso to Rule 173 RA(2) and that the second proviso could not be read as having the effect of denying the exemption available under any other independent notification to an assessee to whom the benefit of Notification 14/76 has not been extended. We cannot find fault with this view.
6. The department cannot bring the second proviso of Notification No. 14/76 into play when the notification itself has not been extended to, or availed of by the assessee.
7. The Collector (Appeals) has held that it is on record that the respondent has not exceeded clearances to bolts and nuts beyond value of Rs. 5 lakhs in a financial year. This is not denied before us by the department. Therefore, the assessee is entitled to the benefit of Notification No. 158/71, dated 26-7-1971.
Accordingly, this appeal of the department is dismissed.