ORDER
S.L. Peeran, Member (J)
1. Both these appeals arise from Order-in-Appeal Nos. 696/2001-CE dated 31.10.2001 and 587/2002-CE dated 3.10.2002. The issue in both these appeals being common in respect of the same assessee, they are taken up together for disposal, as per law.
2. The appellant is a SSI unit availing concession, which is provided in specified goods. They were also manufacturing ‘branded goods’ of another person and in respect of those goods, they had paid full tariff duty. The Department has held that they are not entitled to clear the ‘branded goods’ on payment of duty and at the same time avail the benefit of SSI Notification. The Commissioner, by his brief order, has rejected the appeal without even considering the citations cited by the appellant and noted by him in his Order-in-Appeal No. 587/2002. In Order-in-Appeal No. 696/2001-CE also, the Commissioner has noted that they cannot avail SSI benefit and at the same time clear goods on the ‘branded goods’ of another person by paying duty. He has noted that both the clearances are required to be clubbed. The Commissioner has not followed the citations which are in favour of the appellant.
3. Learned Counsel submitted that the issue is fully covered in their favour, in terms of Larger Bench judgment rendered in the case of Kinjal Electricals Private Limited v. CCE, Meerut wherein it has been held that the appellants availing the benefit of SSI Notification will not be disentitled to it for mere fact of paying duty on the ‘branded goods’ manufactured in respect of another party. It is concluded by the Larger Bench that the assessee was entitled to exercise option not to avail exemption contained under Notification No. 8/99-CE in respect of five of its products while claiming benefit in respect of four other items and in that regard, has confirmed the rulings rendered in the case of Swaraj Paint Industries v. Collector , Collector v. Faridabad Tools Private Limited 1996 (82) ELT A 149 (SC), Kamrup Industrial Gases Limited v. CCE .
4. Learned DR reiterated the view taken by the Commissioner (Appeals).
5. On a careful consideration, we notice that this issue is no longer res Integra and the matter has been fully decided in assessee’s favour, in terms of the Larger Bench judgment of the Tribunal rendered in the case of Kinjal Electricals Private Ltd. v. CCE. There is no need to take a contra judgment in the matter as there are no new grounds raised by Revenue for consideration. The findings recorded by the Commissioner in both the Orders-in-Appeal is not legal and proper and hence, they are set aside by allowing the appeal in terms of the Larger Bench judgment noted supra. Appeals allowed.
(Pronounced in open Court on – 2 APR 2004)