HIGH COURT OFCHHATTISGARH AT BILASPUR Division Bench Coram: Hon' bleShri Dhirendra Mishra, & Hon' ble Shri R.N. Chandrakar, JJ TaxCase No. 28 of 2009 Appellant ,0 Respondents Vs. 1. 2. M/s. Shalimar Ispat Udyog, a partnershipfirm, through its partner Shri Rajendra Daga, son of late K.L. Daga, situated at 34, Industrial Area, Bhanpuri Urkura, Raipur, Town Tahsil and District Raipur, Chhattisgarh. The Commissioner, Central Excise and Custom, Central Excise Building, Dhamtari Road, Tikarapara, Raipur (Chhattisgarh). The Registrar, Customs, Excise and Service Tax Appellate Tribunal, West Block No.2, R.K. Puram, New Delhi. (Appeal under Section 35-G of Central Excise Act, 1944)) Present: Shri, >.Ramakant Mishra, counsel for the appellant. Shri Bhishm Kinger, counsel forthe respondent. ORAL ORDER (Passedon 28-3-2011) Per Dhirendra Mishra, J. 1. The appellant/assessee has preferred this appeal under Section 35 (G) pf the Central Excise Act, 1944 against the order dated 16-12-2008 (Annexure A/5) passed by the Customs, Excise & 'Service Tax Appellate Tribunal, Principal Bench, New Delhi, (for short, "the Tribunal") on the following substantial questions of law. "(a) Whether the learned Tribunal'was right in dismissing the appea! of the appellant and upholding the finding of Commissioner Appeal and adjudicating authority that the small scale industries unit whose value of clearance in financial year does not exceed Rs.200 lakh, but exceed ^'^i:~S^SrS-i5^§e BIiBBSia ^. Rs.75,00,000/- are not eligible for deemed credit in view of the Ministry's Order No.TS/36/94-TRU, dafed 1 -3- 1994, read with notification No.1/93-CE dated 28-2- 1993?; (b) whether the qrder passed by the Customs, Excise and Service Tax Appellate Tribunal , New Delhi is lawful in terms of Central Excise Act, 1944?; (c) Whether the order of disallowance and recovery of deemed Credit Amountingto Rs.4,20,101/- under erstwhile Rule 57(1) of Central Excise Rule 1944and penalty imposed under erstwhile Rule 173 Q of the Central Excise Rule 1944isjustified?; and (d) Whether the instant case is covered under the decision of the Larger Bench of the Tribunal passed in M/s. Digambar Foundry Vs. CCE Allahabad, reported in 2001 (118)ELTpage No.85?" 2. Shri Ramakant Mishra, learned counsel appearing for the appellant submits that the impugned orderhas been passed by the Tribunal by relying upon the decision of the larger Bench of the Tribunal passed in M/s. Digambar Foundry Vs. CCE Allahabad, reported in 2001(118) ELT page No.85 (Tri-LB), wherein it has been held that re-rollers, whose value of clearances in financial year exceeds Rs. 75,00,OOO/- are not eligible for deemed'eredit, in view of Ministry's order No. TS/3694-TRU dated 1-3-1994 read with Notification No. 1/93-CE dated 28-2-1993 and Chandigarh Central Excise Commissionerate Trade Notice No.81/94 dated25-7-1994. In the impugned order, it has also been mentipned that there is no decision of any High Court on this issue which is contrary to the Tribunal's judgment. However, High Court of Himachal Pradesh in the matter of Sood Steel Industrial (P) Ltd. Vs. Commissioner of Central Excise, reported in 2009(241) E.L.T. 186 (HP), has categorically held that the view expressed by the larger Bench of the Tribunal in M/s. Digambar Foundry (supra), is not correct and the benefit of Notification No.1/93-C.E. is available to any manufacturer whose total clearances in the preceding financial yeardid not exceed Rs. 2 crores. Thus, in view of the judgment of the High Court of Himachal Pradesh in the matter of ''"s"^?'.'; ^w Sood Steel Industrial (P) Ltd., (supra), the impugned order of the Tribunal be set aside and the matter be remanded back to the Tribunal to decide the matter afresh. 3. Shri Bhishma Kinger, learned counsel appearing for the respondent does not oppose the aforesaid prayer. 4. In that view of the matter, the appeal is allowed and the impugned order is set aside and the matter is remanded back to the Tribunal for deciding the appeal of the appellant/assessee afresh in the light of judgment in the matter of Sqod Steel Industrial (P) Ltd., (supra). ,-— _____ Sd/- DhirendraMishra Judge Sd/- R.N. Chandrakar 'ti—