Per Lajja Ram :

This appeal has come before us in Larger Bench on a reference made by a Bench of Two Members in Order No. C-II/1118-1119/WZB/2000 dated 10.4.2000. The question refereed for our consideration is whether with regard to the same specified goods, the benefit of modvat credit and the benefit of full exemption under small scale exemption notification, could be availed of by an assessee simultaneously. With regard to different specified goods, there was already a decision dated 20.4.92 of the Tribunal in the case of Faridabad Tools Pvt. Ltd. Vs. CCE - 1993 (63) ELT 759 (Tribunal) holding that with regard to different specified goods, the benefit of modvat credit and the benefit of full exemption under small scale exemption Notification could be availed of simultaneously by an assessee but on different goods. This decision had been confirmed by the Hon'ble Supreme Court on 2.1.96 through dismissal of the Civil Appeal filed by the Revenue.

The referring Bench had noted the Five Member Larger Bench's decision dated 19.11.94 of the Tribunal in the case of Kamani Foods Vs. CCE, Patna - 1995 (75) ELT 202 (Tribunal), wherein it was held that in terms of Notification No. 175/86-CE dated 1.3.86, full exemption would not be available under that Notification to a manufacturer for the specified goods manufactured by him if he chooses to avail of the benefit of modvat credit for other specified goods. The Larger Bench had followed the Tribunal's earlier decision dated 4.5.89 in the case of Kharia Cement Works Vs. CCE - 1989 (42) ELT 696 (Tribunal). The Larger Bench had differed with the view taken by the Tribunal in the case of Faridabad Tools Pvt. Ltd. Vs. CCE - 1993 (63) ELT 759 (Tribunal). As already observed above, this decision in the case of Faridabad Tools Pvt. Ltd. had since been confirmed by the Hon'ble Supreme Court through dismissal of Civil Appeal filed by the Revenue.

2. The appellants have filed written submissions. They have mentioned in these written submissions that the Tribunal's Larger Bench's decision in the case of Kamani Foods Vs. CCE, Patna - 1995 (75) ELT 202 (Tribunal) was rendered on 19.1.94 before the dismissal of the Civil Appeal filed by the Revenue against the Tribunal's Orders in the case of Faridabad Tools Pvt. Ltd. Vs. CCE - 1993 (63) ELT 759 (Tribunal) (refer Court Room Highlights appearing at page A-149 in 1996 (82) ELT). It was also submitted that the appellant's case was similar to the one decided by the Tribunal in the case of Jaina Detergent Pvt. Ltd. Vs. Commissioner of Central Excise, Allahabad - 1999 (113) ELT 613 (Tribunal). It was however fairly agreed that the Supreme Court had admitted the Civil Appeal filed by the Revenue against this Tribunal's Order in the case of Jaina Detergent Pvt. Ltd. Vs. Commissioner of Central Excise, Allahabad - 1999 (113) ELT 613 (Tribunal [refer page A-240 of 2000 (118) ELT].

Shri Prabhat Kumar, SDR submitted that in the present case the goods manufactured by the appellants were classifiable under Chapter 30 of the Central Excise Tariff, and the same specified goods even when manufactured with their own brand name as well as with the brand name of loan licensee, could not be considered as different goods. He pleaded that the issue for consideration in the present proceedings was different than the one before the Tribunal in the case of Faridabad Tools Pvt. Ltd. Vs. CCE - 1993 (63) ELT 759 (Tribunal).

3. We have carefully considered the matter.

4. In so far as the availing of modvat credit, and the full exemption under small scale exemption Notification, on different specified goods is concerned, the matter is already covered by the Tribunal's decision in the case of Faridabad Tools Pvt. Ltd Vs. CCE - 1993 (63) ELT 759 (Tribunal), which has since merged with the order of the Hon'ble Supreme Court. The Hon'ble Supreme Court has confirmed the view taken by the Tribunal by dismissing the Revenue's Civil Appeal, as mentioned in the Court Room Highlights at page