Per G.R. Sharma :

This appeal is filed by the appellants against the finding of the Commissioner of Central Excise (Appeals). The ld. Commissioner (Appeals) had held that "I am of the opinion that they can of course switch over to Notification No. 5/94 dt. 1.3.94, but only after they have availed the exemption notification in full i.e., upto the clearances of Rs. 75 lakhs. Only after that they can opt for another exemption Notfn. i.e., 5/94. This has also been clarified vide the Govt. of India letter No. 354/8/88-TRU dt. 12.4.1989."

2. The facts of the case briefly stated are that the appellants are engaged in the manufacture of cement. Cement was classifiable under Chapter Sub heading 2502.29. They have filed a Classification List stating clearly that they were availing the benefit of Notfn. No. 1/93 for clearances upto Rs. 50 lakhs and beyond clearances of 50 lakhs, they were availing the benefit of exemption Notfn. No. 5/94.

3. Arguing the Appeal, Shri J.S. Agarwal, ld. Advocate submits that in spite of the filing of this clear declaration in their Classification List, the Authorities below did not allow them to avail the benefit of Notfn. No. 5/94 after clearance of Rs. 50 lakhs. He submits that the case is fully covered by the decision of the Tribunal in the case of Commissioner of Central Excise, Bhubaneswar Vs. Ambica Cement Ltd. reported in 1997 (23) RLT 177. He submits that in this appeal, this Tribunal held:-

"Para 4.2: Plain reading of the relevant clause of the second proviso clearly indicates that it is in respect of a particular consignment of cement which is cleared from the factory because it is at this point of time that cement will be liable to duty. That debarring clause is placed by clause (b) in Notification 24/91 and by clause (c) by Notification 5/94 that simultaneous availment of the other Notification viz., 1/93 cannot be obtained by a manufacturer. Therefore, there is nothing wrong if the respondents avail of Notification 24/91 or as subsequently replaced by Notification 5/94 in respect of cement cleared after Rs. 50 lakhs upto which the manufacturer had availed the Notification No. 1/93-CE. Consequently, we do not find any substance in the first ground of appeal."

This Tribunal held that issue of opting for Notfn. out of the two was decided by the Tribunal in the case of Prominent Plastic Industries Vs. CCE New Delhi reported in 1997 (93) ELT 299 where this Tribunal observed that :

"Para 4: Heard the submissions of both sides. We find that in the relevant C/List effective from 1.4.1993, the appellants had already claimed under the column `No. Date of the relevant notification, if any, issued having bearing on the rate of duty' "Notification No. 14/92-C.E. dated 1.3.1992 as amended and in the column `rate of duty', they had claimed basic duty as 35%. There is no dispute that this Notification was not applicable to the goods manufactured by the appellants. The only dispute was that the deptt. alleged that since there was an exemption Notification No. 1/93 available to SSI unit, the appellants should have availed the benefit of this Notification. However, we find that simultaneously, the benefit of Notification No. 14/92-C.E. was also available to the appellants. It was the option of the appellants either to avail of the SSI exemption Notification No. 1/93 or the benefit of Notification No. 14/92-C.E. Their C/List shows their claim for availment of Notification No. 14/92-C.E. and also indicates that they will be paying duty at a rate of 35%. In the Notification No. 14/92-C.E., there is no condition as to the availability of the benefit of this Notification. This notification was applicable to the goods specified therein. The admitted position is that there is no dispute about the description or the nature of the assessee either to opt for availing credit of duty on inputs under the Modvat scheme or to avail exemption as SSI unit under the relevant notification. Having regard to the discussion, we hold