Mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL NO.92 OF 2006 Commissioner of Central Excise & Customs..Appellant Vs. M/s.Bidhata Industries Pvt. Ltd. ....Respondent Mr. P.S. Jetly with Mr. J.B. Mishra for the Appellant. Mr. Jitu Motwani i/b. P.D.A. Legal for Respondents CORAM : F.I. REBELLO & D.G.KARNIK, JJ. DATED : 21ST JULY, 2009 P.C. Appeal was admitted on the following question:- “Whether the CESTAT is right in setting aside the order-in-Appeal No.CPA/64/TH-I/2004 dated 21.09.2004 when there is no provision in law w.e.f. 01.05.2001 for availment of deemed credit as per para 4A of Notification No.07/2001 Central Excise (NT) as amended by Notification No.17/2001 Central Excise (NT) dated 30.04.2001 where the assessee avails special procedure prescribed under Rule 96ZNA and pays the specified sum of duty in accordance with a notification issued under Rule 96ZNC of the Central Excise Rules, 1944?” 2. The Appellants are aggrieved by the order of the learned Tribunal which has taken the view that as the Respondents had cleared the goods available at the end of 30-4-2001/1-5-2001 on payment of ad-valorem duty, the compounded levy scheme would not be applicable to them. 3. A Notification came to be issued on 1st March, 2001. Under this Notification the manufacturer of goods were entitled to avail of deemed credit. A second Notification thereafter was notified on 30th April, 2001 which came into force on 1st May, 2001. By this Notification in respect of goods which were manufactured or produced prior to 1st May, 2001 the following provision was made:- “96ZNB. Conditions for availing of special procedure. (1)........... (2) .......... (3)........... (4).......... (5) ......... (6) ......... (7) Nothing contained in this section shall apply to - (a) the said goods which are manufactured or produced prior to the 1st day of May, 2001 and cleared on or after that date.”; 4. Another Notification came to be issued on 30th April, 2001. This was to amend Notification notified on 1st March, 2001 which we have referred to earlier. By this Notification after paragraph 4 Para.4A was inserted in Notification of 1st March, 2001 and the same reads as under:- “4A. The provisions of this notification shall not apply to a manufacturer who avails of the special procedure prescribed under Rule 96ZNA and pays the specified slum of duty in accordance with a notification issued under Rule 96ZNC of the Central Excise Rules, 1944.” 5. It will thus be clear that Rule 96ZNB provided that goods manufactured between 1st March, 2001 and 30th April, 2001 and cleared thereafter the provisions of Rule 96ZNB were not applied. Similarly, by virtue of the amendment the Notification of 1st March, 2001, if a manufacturer had availed of the specific procedure in terms of the Notification on 30th April, 2001 and paid the subject sum of duty in terms of Rule 96ZNC, then such manufacturer would not be entitled to avail the benefits of the Notification of 1st March, 2001. 6. In the instant case in the show clause notice the appellant themselves have clearly set out that the manufacturer i.e. the respondents herein had paid ad-valorem duty. In other words the manufacturer had not availed of the benefits in terms of para.4A of the Notification dated 1st March, 2001. A finding to that effect has also been recorded by the Tribunal in the impugned order. 7. Once that be the case, we find that the Tribunal correctly addressed itself to the issue in question. The learned Counsel for the Appellants sought to contend that there is difference between manufacture and goods. In our opinion the Notification applied to manufacturer of the goods. In the instant case the respondents are manufacturers of goods. They are covered by the Notification and hence we find no error of law in the judgment of the Tribunal. Consequently, the question of law as framed would not arise. 8. In the light of that the question is answered in the affirmative in favour of the assessee and against the Revenue. Appeal disposed of accordingly. (D.G. KARNIK, J.) (F.I. REBELLO, J.)