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ITEM No.1-A Court No.14 SECTION III
(for judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CIVIL APPEAL Nos. 3727-3728 OF 2005
M/S.UTTAM INDUSTRIES APPELLANT (s)
VERSUS
COMMNR.OF
CENTRAL
EXCISE
HARYANA
Respondent (s)
Date : 21/02/2011 These appeals were called on for judgment
today.
For Appellant (s) Ms.Neeru Vaid, Adv.
For Respondent(s) Mr.B.Krishna Prasad,Adv.
Hon'ble Dr. Justice Mukundakam Sharma pronounced the
Judgment of the Bench comprising His Lordship and Hon'ble Mr.
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Justice Anil R. Dave.
Delay condoned.
The appeals are dismissed in terms of the signed reportable
judgment which is placed on the file.
(KUSUM SYAL) (RENU DIWAN)
SR.P.A COURT MASTER
(Signed
Reportable judgment is placed on the file.)
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 3727-3728 OF 2005
lM/s. Uttam Industries .... Appellant
Versus
Commnr.
of Central
Excise,
Haryana
...
Respondent
JUDGMENT
Dr. MUKUNDAKAM SHARMA, J.
1 The issue that falls for consideration in these appeals is to the
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entitlement or otherwise of the appellants to the benefit of
Notification No. 180/88 CE dated 13.05.1988 as amended by
notification No. 135/94-CE dated 27.10.1994 whereunder
exemption available was made conditional to the non-availment of
Modvat Credit of the duty paid on the inputs.
2. In order to record a definite finding on the aforesaid issue it would
be
necessary
to set out
certain
facts
leading to
filing of
the
present appeals.
3. The appellants are engaged in the manufacture of aluminum
circles and utensils. The appellants filed classification list with
effect from 27.10.1994 whereby the appellants claimed benefit of
Notification No. 1/93 dated 28.02.1993 as well as benefit of
Notification No. 135/94-CE dated 27.10.1994. A show cause notice
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was issued to the appellants on 18.01.1995 contending inter alia
that the benefit of Notification dated 27.10.1994 was not available to
the appellants. Subsequent to the same a demand of Rs. 5,18,652/-
was confirmed by way of denial of the aforesaid benefits of
Notifications vide order passed on 01.11.1995.
4. Being aggrieved by the aforesaid order passed in the order-in-
original
dated
01.11.1995, the appellants filed an appeal before the Commissioner
Central Excise (Appeals) contending inter alia that the appellants
fulfilled conditions of both the Notifications, namely, the one issued
on 13.05.1988 as amended by notification dated 27.10.1994 and
also of the Notification dated 28.02.1993 and since both the
aforesaid notifications are independent it cannot be said that
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benefits under both the notifications cannot be availed by the
appellants and that rather one can avail both the benefits
simultaneously.
5. The Commissioner Central Excise, who was the appellate
authority held that the appellants had not fulfilled the stipulated
conditions laid down in Notification dated 13.05.1988, as amended
as the
appellants availed Modvat Credit and therefore they are not entitled
to the benefit of the said Notification. It was also held by the
appellate authority that the appellants did not place any material on
record to show that they had fulfilled conditions of the Notifications
for availing benefit of Modvat Credit.
6. Being aggrieved by the aforesaid order passed on 31.03.2003 the
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appellants filed an appeal before the Customs, Excise and Service
Tax Appellate Tribunal. By Judgment and Order dated 10.03.2004
the aforesaid appeal filed by the appellants was also dismissed
holding inter alia that in this case it is not disputed by the
appellants that they were availing the credit in respect of the inputs
used in the manufacture of the aluminum circles and therefore they
are not
entitled to
the
benefit of
the
Notification granting exemption. 7. Still aggrieved the appellants filed
the present appeals on which we heard learned counsel appearing
for the parties, who had taken us through various orders passed by
the different authorities and also through other connected records.
8. On going through the records it is clearly established that the
appellants are availing Modvat Credit in respect of inputs used in
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the manufacture of aluminum circles. The order-in-original, the
orders passed by the appellate authority and as also by the Tribunal
concurrently held that admittedly the appellants are availing such
Modvat Credit in respect inputs used in the manufacture of the
aluminum circles. Consequently, the appellants are not entitled to
avail the benefit of Notification granting exemption inasmuch as for
availing
such
benefit
under the
said
notification the pre-condition is that the aluminum circles are to be
cleared for intended use in the manufacture of utensils and no credit
of duty paid on inputs has been taken in respect of the inputs used
in the manufacture of the aluminum circles. All the aforesaid three
authorities below having held concurrently in the same manner as
stated hereinabove. Such finding has become final and it is not
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open to the appellants to challenge the same. We also hold that the
appellants failed to bring any evidence on record that the appellants
were not availing of Modvat Credit on the same goods in respect of
which they were also claiming benefit of exemption under
Notification.
9. That being the position we are not inclined to interfere with the
aforesaid
finding of
fact
recorded
by the
Tribunal
and the
authorities below on the aforesaid issue.
10. It is by now a settled law that the exemption notification has to
be construed strictly and there has to be strict interpretation of the
same by reading the same literally. In this connection reference can
be made to the decision of this Court in Collector of Customs
(Preventive), Amritsar vs. Malwa Industries Limited reported at
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(2009) 12 SCC 735 as also to the decision in Kartar Rolling Mills
vs. Commissioner of Central Excise, New Delhi reported at (2006)
4 SCC 772 wherein also it was held by this Court that finding
recorded by the Tribunal and the two authorities below are findings
of fact and such findings in absence of evidence on record to the
contrary is not subject to interference. In order to get benefit of
such
notification granting exemption the claimant has to show that he
satisfies the eligibility criteria. Since the Tribunal and the
authorities below have categorically held that the appellant does not
satisfy the eligibility criteria on the basis of the evidence on record,
therefore, we hold that the said exemption Notification is not
applicable to the case of the appellants.
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11. We do not find any merit in these appeals, therefore, we dismiss
the same but leaving the parties to bear their own costs.
………………………………………J
[Dr. Mukundakam Sharma]
………………………………………J
[ Anil R.
Dave ]
New
Delhi,
February
21, 2011.