ORDER
V.K. Agrawal, Member (T)
1. The issue involved in this appeal filed by M/s. Uttam Industries is whether the exemption contained in Notification No. 1/93-CE., dated 28-2-1993 can be claimed by them when they had already opted for not claiming the benefit of said Notification while filing classification list/declaration.
2 Shri J.S. Agrawal, Learned Advocate, submitted that the Appellants manufacture aluminium & aluminium alloys plates, sheets, circles, etc., falling under Chapter 76 of the Central Excise Tariff Act; that aluminium utensils were exempt from payment of duty under notification No. 180/88-C.E., dated 13-5-1988; that aluminium circles were also exempted from payment of duty if used captively in the manufacture of utensils; that duty @ 20% ad valorem was payable if sold for home consumption, Notification 180/88 was amended by Notification No. 135/94-C.E., dated 27-10-1994 and duty @ Rs. 2000 Ton became chargeable on aluminium circles intended for used in the manufacture of utensils provided no credit of duty paid on inputs had been taken under Rule 57A/57Q of the Central Excise Rules; that till 8-6-1995, they were paying duty on circles, that thereafter they opted for Notification No. 1/93 by filing declaration dated 9-6-1995 and cleared goods without payment of duty, at Nil rate under Notification No. 1/93 during the period from 9-6-1995 to 21-6-1995. He mentioned that the Assistant Commissioner denied them the benefit of Notification No. 1/93 and demanded duty of excise on the ground that the Appellants had themselves undertaken not to claim the benefit of Notification No. 1/93 in view of Paragraph 4 of the Notification; that the Commissioner (Appeals) also rejected their appeal following Paragraph 4 of the Notification which provided that once a manufacturer has exercised the option for not availing the benefit of exemption, he has to pay duty on all clearance during the relevant financial year. The learned Advocate submitted that it is a settled law that it is the option of the assessee to work under any scheme, which is beneficial to him. Reliance was placed on the decision in the case of Watts Electronics Pvt. Ltd v. C.C.E., 1994 (70) E.L.T. 127 (T). He further relied upon the decision in Shree Cables & Contractors (P) Ltd v. C.C.E., Bhopal, 1999 (32) RLT 934 wherein the Tribunal held that there is nothing to show that the notification was to be availed of from the first day of the financial year and allowed the exemption under Notification No. 1/93 claimed from 19-5-1995. He also relied upon the decision in Reva Auto Industries v C.C.E., New Delhi, 1999 (105) E.L.T. 132 (T). The learned Advocate finally submitted that in any case the duty will be payable @ Rs. 2000/- PMT under Notification No. 180/88 as amended and not @ 15%.
3. Countering the arguments, Shri R.K. Sharma, learned S.D.R., submitted that both the decision in the case of Watts Electronics and Reva Auto Industries relied upon by the learned Advocate for the Appellants, were passed while interpreting Notification No. 175/86 which did not contain any provision similar to proviso to Paragraph 4 of Notification No. 1/93; that paragraph 4 clearly bars the assessee to change has option in a financial year and as they had opted for payment of duty, they cannot claim the exemption under the Notification from a subsequent date: that the particular aspect or payment of duty on aluminium circles @ 15% has been decided by the Assistant Commissioner under Order-in-Original No. 66/95, dated 29-6-1995 denying the benefit of Notification No. 108/88 V.R., dated 13-5-1988 and according duty is to be paid @ 15% Adv.
4. We have considered the submission of both the sides. We find substantial force in the submissions of the learned SDR that the ratio of the decision in the case of Watt Electronics and Reva Auto Industries is not applicable in view of proviso to paragraph 4 of the Notification No. 1/93 which reads as under:
“Notwithstanding the exemption contained in paragraph 1 of this notifica-tion, a manufacturer shall have an option for not availing of the benefit of the exemption contained in the said paragraph and to pay duty of excise at the rate applicable to the specified goods but for the exemption contained in the said paragraph, subject to the condition that such manufacturer shall pay duty at the rate applicable but for aforesaid exemption on all subsequent clearance of specified goods made after availing such option, in a financial year in which such date of option falls.”
5. It is evidefit from this that once a manufacture exercises his option for not availing of the benefit of the exemption contained in the Notification, he has to pay duty at the rate applicable on all subsequent clearances of specified goods made after availing such option in a financial year in which such date of option falls. It is not controverted by the Appellants that in classification list effective from 1-4-1995 and declaration effective from 1-5-1995, filed by them, they had opted not to claim the benefit of duty. In view of exercising their option, they cannot claim benefit of exemption contained in Notification for subsequent clearances. The decision in the case of Shree Cables & Conductors, supra, is not applicable as the facts were different. In that matter, the eligibility criterion for availing exemption under Notification No. 1/93 was changed by issuing Notification No. 59/95, dated 16-3-1993. This notification increased the limit of value of clearances during the proceeding financial year from Rs. 200 lakhs to Rs. 300 lakhs and they became entitled to the exemption under Notification No. 1/93. The appellants therein were not aware of the change and they filed declaration claiming the benefit of Notification when they came to know about the amendment. In view of these facts and circumstances Tribunal allowed then the benefit of Notification No. 1/93 observing that “there is nothing to show that the notification was to be availed of from the first day of the financial year.” In the present case Appellants had opted for non-availing the exemption and as such they later on, cannot change the option in view of clear prohibition contained in the Notification in this regard.
6. The learned Advocate has also questioned the rate of duty and has submitted that they are required to pay duty @ Rs. 2000 Per Tonne under Notification No. 180/88 as amended and not @ 15% Adv. Our attention has been drawn to the fact that by another Adjudication Order No. 66/AC/95 dated 29-6-1995, the Assistant Commissioner has decided this matter. The said order is not before us and neither the Appellants more Revenue has mentioned whether any appeal has been filed or not against the said order and if appeal has been filed what was its outcome. As far as the present appeal is concerned we hold that the Appellants are not entitled to avail of exemption under Notification No. 1/93 during the relevant period and the excise duty is payable by them without availing the benefit of Notification No. 1/93.
