ORDER
Shri S.S. Sekhon
1. These applications are filed by the appellants who were registered as a Small-Scale Industry and were availing the benefit of notification 1/93 dated 28.2.93 (as amended). For the financial year 95-96, during the months of April and May they cleared the goods manufactured by them at tariff rate of duty. They however, wanted to opt to avail the concessional rates of duty under notification No. 1/93 CE dated 28.2.93 as amended, for clearances from June 95 on wards. Differential of duty for the clearances effected for the period June 95 to Nov 95 amounting to Rs 63,488.85 and Rs. 41,910 for the period Dec 95 to March 96, was demanded from them for the subject clearances on the ground that they had at the beginning of the financial year i.e. 1.4.95 started paying duty at the tariff rate only up to the end of May 95, which clearly shows that they opted for paying duty without availing benefit of notification; hence, as per second Proviso to Clause ii of para-4 of the notification 1/93 dt 28.2.93 as amended, it was absolutely clear that the option for availing benefit and to pay duty at the tariff rate applicable to specified goods was available to a manufacturer; onces such an option was availed, i.e. paying duty at tariff rate, the manufacturer could not avail the exempted rates during the same financial year.
2. We have heard learned Advocate Shri Ramesh Ananth for the appellant and Shri Thomas George for Revenue and have considered the submissions and find:
(a) The learned advocate has fairly conceded that as per the decision in the case of Randhir Rolling Mills (2000 (124) ELT 1051 (Tribunal) they have no case on merits. The Tribunal in that case has held that the subject para in notification 1/93. (re-numbered as para-5) gives an option only once in a financial year. However he submitted that the appellants have not exercised any option, since the notification did not prescribe any manner of exercising such an option, nor the Central Excise Rules provide for the same. The payment at the tariff rates were due to a mistake. Therefore, the appellants should not be penalised by charging them duty paid by mistake.
(b) To a question from the Bench, the Advocate conceded that they had filed the necessary declarations envisaged under Rule 173-B and 173-C and that they were availing the benefit of notification for quite some time. He however, did not produce the copies of the declarations filed under these rules as to indicate what were the declarations filed and claimed. These declarations, especially the one under rule 173 B(1)(d) prescribe that the exemption notification availed or proposed to be availed as introduced after 1.5.95 and the earlier rule 173 (1)(c) provided for showing the rate of duty leviable. That would be an indicating option. We, therefore, do not accept the subject payment of duty under the tariff rate to be a mistake and also that such a mistake continued for the months of April through and to end of May 95. In view of the specific finding of the Tribunal in the case of Randhir Rolling Mills (supra) and a perusal of the relevant paragraph-4 of the notification, we find no infirmity in the Orders of the lower authorities, confirming the demands and duties by their orders. We find no merit in the present appeals.
3. In view of our finding, the appeals are dismissed.
(Pronounced in open court on 19/3/2001)