ORDER
Archana Wadhwa, Member (J)
1. As per the facts on records, the appellant was working under Notification No. 175/86 upto 31.3.1993 and under Notification No. 1/93-CE thereafter. Inasmuch as during the financial year 1988-89 the total value of the clearances by the said appellant was more than Rs. 150 lakhs, they were not entitled to the benefit of the exemption during the next financial year. Though the Notification in question was amended vide Notification 119/89-CE dated 27.04.89 and the eligibility criteria was increased from Rs. 150 lakhs to Rs. 200 lakhs but the revenue entertained the view that during the period 1.4.89 to 27.04.89 the appellant was required to pay full rate of duty. Accordingly, after following the process of adjudication duty of Rs. 1,84,900/- was confirmed against the appellant.
2. Shri M.H. Patil, Ld. Advocate appearing for the appellant fairly agrees that the issue stands decided against the appellant by the Larger Bench decision of the Tribunal in the case of Collector of Central Excise, Vadodara v. Rotomould (India) Pvt. Ltd. reported in 2000 (38) RLT 698 (Tri. LB) wherein it was held that the Notification No. 119/89-CE enhancing the limit of value of clearances in preceding financial year to Rs. 200/- lacs with effect from 27.4.1989 is effective prospectively and the benefit accrus to the assessee only from the said date and not from the start of financial year of 1.4.89. He, however, drew our attention to another Larger bench decision of the Tribunal in the case of CCE v. Marutham Textiles (P) Ltd. and Ors. reported in 2003 (55) RLT 382 (CEGAT-L.B.) wherein it was held that exemption under Notification No. 1/93 is not available to cotton yarn cleared prior to 25.4.94 when it became specified goods under Notification No. 90/94-CE dt. 25.4.1994. However, he submits that in para 13 of the said judgment the bench has observed that the duty of excise paid by the assessee on cotton yarn cleared from 25.4.94 till they started availing the benefit of Notification No. 1/93-CE cannot be recognized as duty of excise and have to be treated as bare deposits of money lying with the Government as rightly clarified in the Board’s Circular dated 4.1.91. As such the Tribunal has directed the revenue to adjust the said amount of duty against the duty of excise now being confirmed against the assessee. As such, he submits that the duty deposited by them prior to 27.4.1989 should be considered as deposit and should be adjusted against the duty now being confirmed.
3. Shri S. Singhal, Ld. JDR appearing on behalf of the revenue submits that inasmuch as the issue is decided against the appellant, the appeal on merits is to be rejected. As regards the availment of exemption, he submits that the appellant was required to pay duty during the period 1.4.1989 to 26.04.89 as such there is no question of adjustment of the same.
4. We have considered the submissions made by both the sides and it is conceded by the Ld. Advocate that the issue stands decided against them by the Larger Bench in the case of Rotomould (India) Pvt. Ltd. referred supra. As regards, the prayer for adjustment in terms of para 13 of the Larger Bench decision in the case of Marutham Textiles (P) Ltd. & Ors. referred supra, we do not find any justification for the same. The facts in the case of Marutham Textiles is different and it was observed that as the assessee was entitled to the small scale exemption under Notification No. 1/93 with effect from 24.4.94, though the option was exercised later on and having cleared the goods on payment of duty during such period, were entitled to adjusting the same towards the duty liability to be paid by them after reaching the exemption slab. Admittedly in that case the appellants were entitled to duty exemption with effect from 24.4.94. Dispute was only as to whether the exemption slab of Rs. 30 lakhs is to be calculated in reference to the first clearances effective from 1.4.94 or to the clearances effected after 25.4.94. The issue on merits was answered by the Larger Bench in favour of the revenue but clearances effective from 25.4.94 on payment of duty were directed to be adjusted against the duty of excise held payable by them subsequently.
5. In the present case we find that the duty relates to the period 1.4.89 to 26.4.89. During the said period the appellants were required to pay duty inasmuch as the eligibility criteria i.e. clearances of Rs. 150 lacs during the preceding financial year was not met by them. Subsequently enhancement of the criteria to Rs. 200/- lacs was effective only from 27.4.89 as such it is not the case where the appellant had cleared their goods on payment of duty, when they were otherwise entitled to the exemption so as to grant them adjustment. As such, we find the same has been rightly confirmed against the appellant. We find no merits in the appeal in the said plea of the appellant. The same is, accordingly, rejected.
6. However, Shri M.H. Patil has pleaded that the said duty now being confirmed against them should be allowed deduction by treating the entire realization as cum-duty price, in terms of the larger bench decision in the case of Srichakra Tyres. We agree with him on this count. Accordingly, original adjudicating authority would requantify the demand by treating the entire realization as cum- duty and allowing the benefit of duty deduction. Appeal is disposed of in the above terms.
(Pronounced in Court)