ORDER
Moheb Ali M., Member (T)
1. This Revenue’s appeal is directed against the order of Commissioner (Appeals) who in the impugned order set aside the order of the lower authority and allowed the appeal before him.
2. Briefly the facts are that the respondent manufactures excisable goods falling under Chapter 39 of the Central Excise Tariff Act. He had filed classification declaration No. 1/98-99 w.e.f. 1.4.98 and 2/98-99 w.e.f. 2.6.98 for various products manufactured by him and claimed exemption under Notification No. 38/97 CEX dt. 27.6.98 and 9/98 dt. 2.6.98 respectively for the goods availing modvat benefit. The purpose of availing benefit of Notification No. 38/97 dt. 27.6.97 the manufacturer is required to exercise his option in writing before the Jurisdictional Assistant Commissioner and the option shall be effective from the date of exercise of such option and that such option can not be changed during the financial year. The allegation is that the appellant has not fulfilled the condition In view of the above legal position a show cause notice was issued to the assessee inter alia requiring him to explain as to why the benefit of Notification No. 38/97 should not be denied for clearances effected upto 11.8.98, the differential duty should not be demanded and penalty should not be imposed. In the impugned order the Commissioner (Appeals) held that the assessee opted for the benefit under Notification No. 38/97 for the first time from 11.8.97 after filing necessary declaration as prescribed under Para-2 (ii) of the said notification and continued to avail benefit under the said notification. The Commissioner (Appeals) found that the assessee again filed a declaration under Para 2 (ii) of the said notification on 12.8.98 as per the directions of the Jurisdictional Supdt. He held that filing of declaration opting for the benefit of notification No. 38/97 was necessary for those who were availing of the benefit under Notification No. 16/97 dt. 1.4.97 in terms of Para 2 (ii) of the said Notification. He considered that non filing of option in such an event can be considered as a technical lapse and the assessee cannot be deprived of the said benefit on that account alone. Heard both sides.
3. Ld. Advocate pleaded that the issue is already covered in the case of Commissioner of Central Excise Mumabi-V v. Mini Electronic Inds. Pvt. Ltd. [2001 (135) ELT 574 (Tri.Mumba)] wherein the Tribunal held that the benefit of Notification No. 38/97 taken without filing option letter for the period 1.4.98 to 1.7.98 does not disentitle the assessee from the benefit of the above said notification, the Tribunal held that the exemption is available, in view of the fact that the assessee in the earlier period also had exercised the option. In an earlier decision of the Tribunal in order No. C-I1/2386-2389/99-WZB dt.9.9.1999, the Tribunal observed as follows:
“Although the notification makes it necessary for the option to be given, all the details required are available on the classification declaration filed by the assesses on 15.4.1998. Therefore, it can be held that the department had received intimation atleast on 15-1998. In dealing with cases of the refund claims, the Tribunal have held that where the assessee had given an intimation of their intention to file a refund claim, such intimation should be taken for the reckoning of the period of limitation, even where the formal refund claim is filed later”.
Following the above ratio the Tribunal in the case of Min Electronics Inds. Pvt. Ltd. cited Supra rejected the Revenue’s appeal. We respectfully follow this decision and reject the Revenue’s appeal.
4. The appeal is rejected.
(Pronounced in Court)