Per S.S. Kang :

Both the appeals are filed against the common order-in-appeal, hence, are being taken up together.

2. Vide impugned order, the Commissioner (Appeals) held that the appellants are entitled for the benefit of Notification 38/97-CE dated 27.6.97 during the period from Jan., 98 to June, 98 as they had not fulfilled the mandatory conditions of the notification.

3. Ld. Counsel, appearing on behalf of the appellants, submits that the appellants filed a classification list claiming the benefit of notification. The classification list was filed on 8.1.98. He submits that, thereafter, vide letter dated 9.1.98, the appellants had also filed declaration as required under the notification. He submits that substantive conditions of the notification are complied with, therefore, the appellants are entitled for the benefit of the notification. He relies upon the decision of the Tribunal in the cases of - (1) Benaras Udyog Pvt. Ltd. Vs. C.C.E. reported in 1998 (103) ELT 104; (2) Foam Tek Systems Vs. C.C.E. reported in 1998 (104) ELT 137; and (3) Jupiter Engineering Works Vs. C.C.E., Mumbai reported in 2000 (90) ECR 297 and submits that in these cases, the Tribunal held that non-filing of declaration cannot be made basis for denial of benefit of notification. The submission of the counsel is that substantive benefit provided under the notification cannot be denied on the ground of procedural irregularity.

4. Ld. S.D.R., appearing on behalf of the revenue, submits that Notification No. 38/97 provides certain conditions which are mandatory and the appellants had not complied with those conditions, therefore, they are not entitled for the benefit of notification. She relies upon the decision of the Gujarat High Court in the case of Indian Farmers Fertilizers Co-operative Ltd. Vs. Union of India reported in 1995 (75) E.L.T. 218 (Guj). She, therefore, prays that the appeal be dismissed.

5. Heard both sides.

6. In this case, the appellants were claiming the benefit of Notification No. 38/97-CE. In the notification it is specifically mentioned that the exemption contained in this notification shall apply only subject to the following conditions, namely :-

"(i) A manufacturer intending to avail the exemption under this notification in a financial year shall exercise his option in writing for availing the exemption under this notification and such option shall be effective from the date of exercise of the option and cannot be changed during the financial year under any circumstances;

(ii) While exercising the option, the manufacturer shall inform in writing to the Assistant Commissioner of Central Excise, with a copy of the Superintendent of Central Excise, giving the following particulars, namely :-