Per G.R. Sharma :

The facts of the case leading to the present appeal are that the appellants are engaged in the manufacture of P.V.C. Compounds. They filed a C/List effective from 1.4.93 claiming the benefit of Not. No. 14/92-CE dated 1.3.92 and the assessment of their goods at 35% ad valorem. The Asstt. Collr. held that the appellants were entitled to the benefit of Not. No. 1/93 dated 28.2.1993 and therefore, amended the C/List disallowing them the benefit of Not. No. 14/92-CE dated 1.3.92. Against this decision, the appellants filed an appeal before the ld. Collector (Appeals) who confirmed the order of the A.C. holding that Not. No. 1/93 which irrespective of their declaration in C/List determines the duty liability of the appellants. The ld. Collr. (Appeals) also held that though modvat is a different scheme, its liability is interdependent on the dutiability of the goods.

2. Shri Naveen Mullick, ld. Advocate submits that the appellants in their C/List for the period 1.4.93 clearly claimed assessment of the goods in terms of Not. No. 14/92-CE dt. 1.3.92. the ld. Counsel submits that a perusal of this notification will show that serial number 2 and 3 of the Table annexed to the notification read as under :

TABLE

He submits that whereas serial number 2 is unconditional and requires the assessee to pay duty at 35% ad valorem, serial number 3 is conditional and requires the assessee to pay at nil rate of duty. The ld. counsel submits that the appellants had claimed benefit under this notification which was applicable in respect of the goods manufactured and cleared by them. He submits that there was no question of any option whatsoever. Alternatively, the ld. Counsel submits that even if it was decided that there was a question of option, the option squarely rested with the appellants. In support of this contention, he cited and relied upon the decision of the Tribunal in the case of Modern Engineering vs. CCE, Delhi reported in 1996 (15) RLT 329. The ld. Counsel submits that since they were working under the provision of Not. No. 14/92-CE therefore, they were entitled to opt under the conditions specified in the notification. He therefore, submits that the demand confirmed against them is not justified and prays that the same may be set aside.

3. Shri Jangir Singh, ld. DR appearing for the respondent Commr. reiterates the findings of the lower authorities.

4. Heard the submissions of both sides. We find that in the relevant C/List effective from 1.4.93, the appellants had already claimed under the column 'No. & Date of the relevant notification, if any, issued having bearing on the rate of duty' "Not. No. 14/92-CE dt. 1/3/92 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 Not. 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 Not. No. 14/92-CE was also available to the appellants. It was the option of the appellants either to avail of the SSI exemption Not. No. 1/93 or the benefit of Not. No. 14/92-CE. Their C/List shows their claim for availment of Not. No. 14/92-CE and also indicates that they will be paying duty at a rate of 35%. In the Not No. 14/92-CE, there is no conditions as to the availability of the benefit of this Notification. This notification was applicable to the goods specified therei