ORDER
V.K. Agrawal, Member (T)
1. The issue involved in this appeal filed by M/s. D.B. Shingadia is whether the benefit of Notification No. 175/86 was available to the excisable goods cleared by them during the financial year 1992-93 (1.4.1992 to 21.5.1992).
2. When the matter was called no one was present on behalf of the appellants who have requested to decide the appeal on merits, in their letter dated 5.2.1999. We, therefore, heard Shri R.S. Sangia, learned D.R. and perused the records. The Assistant Collector, under order dated 26.3.1993, had denied the benefit of SSI exemption and confirmed the demand of duty holding that the value of clearance of goods during the financial year 1991-92 was Rs. 13.43 lakhs which was in excess of Rs. 7.5 lakhs and in view of amendment made by Notification No. 55/92 dated 31.3.1992 they were not eligible for benefit of Notification No. 175/86. The Collector (Appeals) confirmed the order of the Assistant Collector holding that the appellants had not availed of the benefit of notification No. 175/86 in terms of Clause (b) to the proviso under paragraph 4 from 1985 onwards and also that they had, in more than one preceding financial year, availed of the Notification in terms of Clause (a) of the proviso.
3. The appellants have submitted, in their memorandum of appeal, that their unit was in existence from 1989 and was availing exemption from whole of duty under notification No. 46/81 dated 1.3,1981; that after rescinding of the said notification, they availed benefit under Notification No. 77/85 dated 17.3.1985, though no declaration was filed by them; that according to decision in R.S. Manx v. Palanimuthu, the word ‘avail’ means “to take advantage of or to utilise”; that as per Clause (b) to proviso to para 4 of notification No. 175/86 they were eligible to avail exemption as they were availing the same under notification No. 77/85. It was further mentioned that unregistered small scale units which were in existence prior to 1.3.1986 and became entitled to the benefits of Notification No. 175/86 under Clause (b) would continue to be entitled to the full benefit under Clause (b) even if their clearance value during any of the subsequent financial year remains less than Rs. 7.5 lakh; that amendment by notification No. 55/92 would not hit such units because they never availed the exemption under Clause (a) and notification No. 55/92 denied the benefit only to those units who had availed the notification by virtue of Clause (a).
3. We have considered the submissions of both the sides. By notification No. 55/92 dated 31.3.1992, the second proviso to paragraph 4 of the notification No. 175/86 was substituted as under:
Provided further that nothing contained in Clause (b) of the first proviso shall apply in a case where a manufacturer who is manufacturing specified goods in a factory has availed of the exemption in pursuance of Clause (a) of the said proviso in any of the preceding financial year.
4. It is apparant from the proviso that any unit where clearance of goods had exceeded Rs. 7.5 lakhs in any preceding financial year and was not registered as small scale unit would not be eligible for the benefit of Notification No. 175/86 as amended. It is specifically mentioned in the show cause notice that the appellants had exceeded the clearance value of Rs. 7.5 lakhs. This has not been controverted by them. In view of these facts, they were not eligible to avail of the exemption under Notification No. 175/86 as amended during the period from 1.4.1992 to 21.5.1992. The appeal is, therefore, rejected.