ORDER
Lajja Ram, Member (T)
1. In this appeal filed by M/s. Rajasthan Alloys & Steel (P) Ltd. the matter relates to the retrospective effect of exemption Notification No. 265/86-C.E., dated 24-4-1986. The appellants were engaged in the manufacture of rail clips which were classifiable under Heading No. 7302.90 of the new Central Excise Tariff. In Notification No. 175/86-C.E., dated 1-3-1986 relating to small scale exemption, goods falling under Heading No. 7302.20 were covered. There was however no Heading No. 7302.20. Earlier exemption was available to goods falling under Heading No. 7302.90 but it does not find any mention in Notification No. 175/86-C.E. Under a subsequent Notification No. 265/86-C.E., dated 24-4-1986 the Heading No. 7302.20 was substituted by Heading No. 7302.90. This amending Notification was applicable only from the date of issue i.e. 24-4-1986. Realising that as a consequence of switch over to the new Central Excise Tariff there have been some mistakes in the Notification issued on 1-3-1986, the Parliament enacted the Central Duties of Excise (Retrospective Exemption) Act, 1986. Para 2 of that Act is extracted below:
"Retrospective 2.(1) Every notification issued by the
effect for certain Government of India in the Ministry of
notification. Finance (Department of Revenue) on or
after the 3rd day of March, 1986, but
before the 8th day of August, 1986,
in exercise of the powers conferred
by Sub-rule (1) of rule 8 of the Central
Excise Rules, 1944, which is for the
purpose of, or has the object of, -
Page 1 line 10 " (a) maintaining the effective rates of
duties of excise at the level obtaining
prior to the 28th day of February,
1986 notwithstanding the changes in
5 of 1986 the rates of duties
6 of 1986 of excise made by the Central Excise
7 of 1986 Tariff Act, 1985 the
Additional Duties of Excise
(Textiles & Textiles
Articles) Amendment Act,
1985, or the Additional
Duties of Excise (Goods of Special Importance)
Amendment Act, 1985, or
Page 1 line 17 (b) maintaining the effective rates
'of duties of excise at the level obtaining
prior to 1st day of March, 1986 notwithstanding
the changes in the rates of duties of excise
made by the Finance Bill, 1986,
Page 2 Line 3 shall be deemed to have, and to have always
had, effect on and from the 1st day
of March, 1986.
(2) The duties of excise which have been
collected, but which would not have been
so collected if the said notification had
been in force at all material times, shall
be refunded:
Provided that no such refund shall be allowed
where credit of duties of excise has been taken
under Rule 56A or, as the case may be Rule 57A
of the Central Excise Rules, 1944, or where the
goods on which the duties of excise have been
paid have been exported under a claim for rebate
of such duties.
(3) The duties of excise which have become payable,
but which would not have been so payable if the said
notification had been in force at all material times,
shall not be required to be paid.
(4) Any person claiming refund of any duty of excise
under Sub-section (2) may make an application for
refund of such duty to the Assistant Collector of
Central Excise before the expiry of six months from
the commencement of this Act."
2. The point for consideration is whether, the amending Notification was issued on 24-4-1986 by virtue of this retrospective exemption Act it is deemed to have been issued on 1-3-1986 & Heading No. 7302.20 had to be read as Heading No. 7302.90 with effect from 1-3-1986 itself.
3. Shri A.L. Mathur, Learned Advocate who appeared for hearing on behalf of the appellants dated 10-9-1996 explained that by virtue of the retrospective effect to the amending Notification they are eligible for small scale exemption from 1-3-1986 itself.
4. Learned JDR in reply submitted that the appellants were not availing of small scale exemption prior to 1-3-1986 and therefore after the budgetory changes also they were not eligible for exemption.
5. We have carefully considered the matter. The amending exemption Notification is dated 24-4-1986 and it amends the exemption Notification No. 175/86-C.E., dated 1-3-1986. By virtue of the Central Duties of Excise (Retrospective Exemption) Act, 1986 the said amending Notification shall be deemed to have effect on and from 1-3-1986. Notification No. 175/86-C.E. is for the small scale units. The exemption is subject to the various conditions as laid down in that notification.
6. Learned JDR had submitted that before 1-3-1986 the appellants were not availing of the small scale exemption and therefore the retrospective exemption will not make them eligible for small scale exemption from 1-3-1986. Although it is mentioned in the aforesaid Act that every Notification which had been issued for the purposes of or has the effect of maintaining the effective duties at the level prior to 28-2-1986, the effect of the same is that with effect from 1-3-1986 itself the Heading No. 7302.90 had to be read in place of Heading No. 7302.20 in Notification No. 175/86-C.E. As the exemption is subject to the various conditions as mentioned in the notification itself, the proper Central Excise authorities had to decide the claim of the appellants whether they were eligible for such [an] exemption or not. Such an exemption will however not be denied only on the ground that Heading No. 7302.90 was not mentioned in the annexure annexed to Notification No. 175/86-C.E.
7. With these directions the matter is disposed of.