Per G.A. Brahma Deva :This appeal arises out of and is directed against the Order-in-Appeal No. 422/99-CE dated 15.4.99 passed by the Commissioner of Customs Central Excise (Appeals), Bangalore.

2. The appellants are engaged in the manufacture of cement and clinker falling under Chapter heading 25. The appellants during the period from October 1994 to March 1995 cleared 4891 MT of Cement to the Earthquake Relief and Rehabilitation work by availing the exemption under notification No. 128/94 as a special relief for Earthquake victim. The Show Cause Notice was issued asking why the duty on clinker used in the manufacture of cement which was cleared under exemption should not be recovered as the clinker was utilised by availing the exemption under notification 217/86. The Deputy Commissioner who adjudicated the proceedings confirmed the demand of Rs. 8,79,567/-. In appeal, the party has become unsuccessful.

3. It was the contention of the party that the demand was beyond the limitation of 6 months and further the exemption under Notification No. 128/94 allowed was also applicable to the clinker used in the same factory for the manufacture of cement. According to the Department, Notification allowed the benefit to the final product and not to the intermediate product and the same cannot be exempted in terms of the aforesaid notification.

4. Heard Shri Munir Ahmed, JDR for Revenue who reiterated the findings.

5. We have carefully considered the submissions. We find that the notification 128/94 allows the exemption to all excisable goods which are listed in the Schedule to the Central Excise Tariff Act, 1985. The clinker which was manufactured by the appellants, falls under Chapter heading 2502.10. It was also submitted by the party that the clinker as such was not cleared without payment of duty, but the clinker was used in the manufacture of cement which was released for the relief and rehabilitation work. The exemption was allowed also to the clinker which was manufactured and utilised for the manufacture of cement. The intention of the Government was to lower rate to the earthquake victims. It was also submitted that the exemption availed under notification 128/94 on cement was also applicable to the clinker which was used in the manufacture of cement. On going through the relevant notification, we find the notification exempts all goods falling under the Schedule to the Central Excise Tariff Act, 1985, donated or purchased out of cash donations, for the relief and rehabilitation of the people affected by the earthquake in the said States from the whole of the duty of excise leviable thereon under both the above mentioned Acts. We also take note of the observations made by this Bench in the case of Bochasanwasi Shree Akshar Purushottam Sanstha Vs. CCE, Bangalore, reported in 2001 (43) RLT 586 (CEGAT-Ban.)=2001 (129) ELT 396 (Tri. Bang.). The relevant portion at Para 5 of the said Order is reproduced as under:-

"5. We have heard both sides and after considering the matter find:

(a) Examining the finding of the Commissioner (Appeals) on the first grounds i.e. "No certificate by the manufacturer that the goods are intended to be donated has been furnished on the clearance documents" we find this condition in the Notification 128/94, dated 7-9-1994 reads -