ORDER
G.R. Sharma, Member (T)
1. The facts of the case leading to the present appeal are that the appellants are engaged in the manufacture of P.V.C. Compounds. They filed a C/List effective from 1-4-1993 claiming the benefit of Notification No. 14/92-C.E., dated 1-3-1992 and the assessment of their goods at 35% ad valorem. The Asstt. Collector, held that the appellants were entitled to the benefit of Notification No. 1 /93, dated 28-2-1993 and therefore, amended the C/List disallowing them the benefit of Notification No. 14/92-C.E., dated 1-3-1992. Against this decision, the appellants filed an appeal before the ld. Collector (Appeals) who confirmed the order of the A.C. holding that Notification No. 1/93 which irrespective of their declaration in C/List determines the duty liability of the appellants. The ld. Collector (Appeals) also held that though Modvat is a different scheme, its liability is interdependent on the dutiability of the goods.
2. Shri Naveen Mullick, ld. Advocate submits that the appellants in their C/List for the period 1-4-1993 clearly claimed assessment of the goods in terms of Notification No. 14/92-C.E., .dated 1-3-1992. The ld. Counsel submits that a perusal of this notification will show that serial number 2 and 3 of the Table annexed to the notification read as under :-
TABLE
——————————————————————————–
Sl. Heading No. Description of goods Rate Condition
No. Sub-heading No.
--------------------------------------------------------------------------------
01 ... ... ... ...
02 39.04 Plastics material commonly 35%
known as polyvinyl chlori-
de compounds (PVC
Compounds)
03 39.04 Plastic material commonly Nil If no credit of the
known as polyvinyl duty paid on the
chloride (PVC inputs used in
Compounds) the manufacture
of such PVC
compound has
been availed of
under Rule 57A
of the said Rules.
--------------------------------------------------------------------------------
He submits that whereas serial number 2 is unconditional and requires the assessee to pay duty at 35% ad valorem, serial number 3 is conditional and requires the assessee to pay at nil rate of duty. The ld. Counsel submits that the appellants had claimed benefit under this notification which was applicable in respect of the goods manufactured and cleared by them. He submits that there was no question of any option whatsoever. Alternatively, the ld. Counsel submits that even if it was decided that there was a question of option, the option squarely rested with the appellants. In support of this contention, he cited and relied upon the decision of the Tribunal in the case of Modern Engineering v. C.C.E., Delhi reported in 1996 (15) RLT 329. The ld. Counsel submits that since they were working under the provision of Notification No. 14/92-C.E. therefore, they were entitled ‘to opt under the conditions specified in the notification. He therefore, submits that the demand confirmed against them is not justified and prays that the same may be set aside.
3. Shri Jangir Singh, ld. DR appearing for the respondent Commr. reiterates the findings of the lower authorities.
4. Heard the submissions of both sides. We find that in the relevant C/List effective from 1-4-1993, the appellants had already claimed under the column ‘No. & Date of the relevant notification, if any, issued having bearing on the rate of duty’ “Notification No. 14/9 2-C.E., dated 1-3-1992 as amended” and in the column ‘rate of duty’, they had claimed basic duty as 35%. There is no dispute that this Notification was not applicable to the goods manufactured by the appellants. The only dispute was that the deptt. alleged that since there was an exemption Notification No. 1/93 available to SSI unit, the appellants should have availed the benefit of this Notification. However, we find that simultaneously, the benefit of Notification No. 14/92-C.E. was also available to the appellants. It was the option of the appellants either to avail of the SSI exemption Notification No. 1/93 or the benefit of Notification No. 14/92-C.E. Their C/List shows their claim for availment of Notification No. 14/92-C.E. and also indicates that they will be paying duty at a rate of 35%. In the Notification No. 14/92-C.E., there is no condition as to the availability of the benefit of this Notification. This notification was applicable to the goods specified therein. The admitted position is that there is no dispute about the description or the nature of the goods even otherwise, the Tribunal has already held that it is the option of the assessee either to opt for availing credit of duty on inputs under the Modvat scheme or to avail exemption as SSI unit under the relevant notification. Having regard to the discussion, we hold that the asses-see was entitled to avail the benefit of Notification No. 14/92-C.E. by paying duty at a rate of 35% as set out in the relevant entry of the Notification.
5. In the result, the appeal is allowed. Consequential relief, if any, shall be admissible to appellants in accordance with law.