1 cexa-17.06-- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL NO. 17 OF 2006 M/s.Flora Metal Ind.P.Ltd. ... Appellant. V/s. Commissioner of Central Excise, Mum-V Commissionerate, Mumbai. ... Respondent. WITH CENTRAL EXCISE APPEAL NO. 27 OF 2008 M/s.Flora Metal Ind.P.Ltd. ... Appellant. V/s. Commissioner of Central Excise, Mum-V Commissionerate, Mumbai. ... Respondent. M.H.Patil with Ms.Aparna Hirandgi for the appellant. A.S.Rao for the respondent. CORAM : V.C.DAGA AND R.M.SAVANT, JJ. DATED : 15th September 2010. P.C. : Heard Mr.Patil, learned counsel for the appellant and Mr.Rao, learned counsel for the respondents. 2 cexa-17.06-- 2. The Central Excise Appeal No.17/2006 has been admitted vide order dated 14th March, 2006 to consider the following substantial question of law: “Whether the CESTAT is correct in denying the deemed credit under Ministry’s order Ministry's order No.TS/36/94-TRU dated 1.3.1994 to the appellants, who were availing SSI exemption in terms of Notification No.1/93-CE dated 28.2.1993, on crossing the value of clearances of Rs.75 lakhs but within eligibility criteria of Rs.300 lakhs and paying full rate of duty? ” The Central Excise Appeal No.27/2008 has been admitted by this Court vide order dated 6th August, 2008 to consider the following substantial questions of law: “1. Whether the CESTAT is correct in denying the deemed credit under Ministry’s order No.TS/36/94-TRU dated 1-3-1994 to the Appellants, who were availing SSI exemption in terms of Notification No.1/93-CE dated 28-2-1993, on crossing the value of clearances of Rs.75 lakhs but within eligibility criteria of Rs.300 lakhs and paying full rate of duty? 2. Whether the facility of deemed credit under the Ministry of Finance Order No.M.F. (D.R.) Order RS/36/94-TRU dated 1-3-1994 would be available to the re-rollers even after crossing the monetory limit of Rs.75 lakhs in respect of value of clearances, in terms of Notification No.1/93-CE dated 28-2-1993?” 3 cexa-17.06-- 3. The aforesaid questions of law raised on identical facts and circumstances revolve around interpretation of notification No.1/93-CE dated 28th February, 1993. The interpretation of this notification was a subject matter of consideration in Sood Steel Industrial (P) Ltd. v. Commissioner of Central Excise, 2009 (241) ELT 186 (HP) at the hands of High Court of Himachal Pradesh; wherein the larger bench judgment of the Tribunal in the case of Digambar Foundary v. Commissioner, 2000 (118) ELT 85 (Tri-LB) was overruled by the High Court. The very judgment of the larger bench of the Tribunal has been relied upon by the Tribunal in the impugned order in order to non-suit the present appellants. The High Court of Himachal Pradesh while overruling the larger bench judgment of the Tribunal in Digambar Foundary (supra) held as under: 12. The Larger Bench held that any manufacturer whose clearances are over Rs.75 lacs cannot be said to avail of the benefit of the notification No.1/93-C.E. and, therefore, could not get benefit of the deemed credit order. Following this order of the CEGAT, the appeal filed by the department was allowed. Hence the present petition. 13. In our view, the order of the Larger Bench of the CEGAT is not correct. The benefit of the notification No.1/93-C.E. is available to any manufacturer whose total clearances in the preceding financial year 4 cexa-17.06-- did not exceed Rs.2 crores. The deemed credit order clearly states that all concerns availing of exemption under Notification No.1/93-C.E. dated 28.2.1993 will be deemed to have paid duty under Rule 57-I of the Rules and the credit may be allowed to them at the rate fixed without production of any documents evidencing the payment of duty. Any manufacturer whose total clearances did not exceed Rs.2 crores was entitled to the benefit of exemption under the notification No.1/93-C.E. No doubt the benefits under this notification were limited to clearances of Rs.75 lacs but this does not mean that manufacturers whose clearances exceeded Rs.75 lacs were not availing the exemption under the notification. In our considered view, the only interpretation which can be given is that the wording used in the notification identifies the category of manufacturers who are satisfying the criteria as set out in Notification No.1/93-C.E. and are availing of the benefit of the said notification. The trade note limiting this benefit to those manufacturers whose clearances do not exceed Rs.75 lacs is totally illegal and against the deemed credit order issued by the Ministry. We may also point out that though the department may be bound by its trade note, the industry is not bound by the same and has a right to challenge the same. 4. Reading of the aforesaid paragraphs would show that the High Court has held that the manufacturer would be entitled to the extent of Rs.75 crore and thereafter to the deemed credit raised to Rs.3 crore after 1st April, 1995 without production of any documents. The aforesaid judgment of the Himachal Pradesh High Court in the case of 5 cexa-17.06-- Sood Steel Industrial (P) Ltd. (supra) was followed by the Punjab and Haryana High Court in G.C.R.No.33/2000 (Commissioner of Central Excise v. M/s.Harness Steel & Allier Indus.) and G.C.R.No.5/2003 (Commissioner of Central Excise v. M/s.Kalsi Steel), both decided vide order dated 18th March, 2010 and G.C.R.No.26/2000 (Commissioner of Central Excise v. M/s.Vishal Re-Rolling Mills) decided vide order dated 23rd March, 2010. 5. Mr.Patil, learned counsel for the appellant submits that the aforesaid judgments have been accepted by the Revenue. No contrary material is placed before us by the Revenue to show that the aforesaid judgments have not been accepted by them or the same are subject matter of challenge before the higher Court. 6. In the above view of the matter, following the aforesaid judgment of the Himachal Pradesh High Court in the case of Sood Steel Industrial (P) Ltd. (supra), all the questions framed are answered in favour of the Assessee and against the Revenue. 7. Both appeals stand disposed of in terms of this order with no order as to costs. (R.M.SAVANT, J.) (V.C.DAGA J.)