Judgment:
1. M/s. Plyboard Industries Ltd. have filed this Appeal along with Stay Petition. In the Stay Petition there is a prayer for waiving pre-deposit of duty amounting to Rs. 22,63,878/-(Rupees twenty two lac sixty three thousand eight hundred seventy eight) and penalty of Rs. 5,000/- (Rupees five thousand).
2. Arguing the case for the applicant(s) Shri M.P. Devnath, learned Counsel submits that the applicant company is engaged in the manufacture of plywood, blockboard, flush doors etc.; that the applicant is a Limited Company registered under the Companies Act, 1956; that the affairs of the company were taken over by M/s. Jammu and Kashmir Industries. Learned Counsel submits that Jammu & Kashmir Industries is a State Corporation wholly owned by Govt. of Jammu & Kashmir; that show cause notice was issued to the applicants asking them to explain as to why clearance of excisable goods from various factories owned by Jammu and Kashmir Industries which exceeded Rs. 2.0 crores should not be clubbed and the appellant asked to pay the duty disallowing the small scale exemption under Notification No. 175/86. He submitted that M/s. Plyboard Industries Ltd. is a separate legal entity; that it maintains its own financial accounts and separate balance sheet; that the appellants had applied for registration submitting all the relevant information, however, no licence was granted; that there was no case for clubbing the clearances of other units with the present appellants which was being run by the Jammu and Kashmir Industries. Learned Counsel submits that similar issue came up before the Tribunal in the case of TANSI v. CCE reported in 1999 (32) RLT 103 wherein under similar facts and circumstances this Tribunal held that SSI exemption would be applicable to all units of TANSI and that their clearances shall not be clubbed. Learned Counsel also submitted that Explanation V in Notification No. 175/86 reads as under : "Explanation V. - For the purposes of this notification, where the specified goods are manufactured in a factory, belonging to or maintained by the Central Government or by a State Government, or by the Khadi and Village Industries Commissioner, then the value of excisable goods cleared from such factory alone shall be taken into account".
3. Learned Counsel also submits that the applicant company had deposited a sum of Rs. 5.0 lac (Rupees five lac) earlier which is still lying with the Department. He, therefore, prays that pre-deposit of duty may be waived and the matter may be sent back to the Authorities below to examine their case in the light of the Explanation V to Notification No. 175/86 and in terms of the decision of this Tribunal in the case of TANSI cited above.
4. Shri Atul Dixit, learned SDR has no objection if the case is sent back to the Commissioner, Central Excise for examining as suggested above.
5. We have heard the rival submissions. On careful consideration of the submissions made before us as also the reading of the Notification and the case law cited and relied upon by the appellants we come to the conclusion that it is a fit case for remand. In the circumstances, after waiving pre-deposit of duty and penalty and setting aside the impugned order we remand the matter back to the Commissioner of Central Excise concerned with the directions to examine the case of the appellants in the light of Explanation V to Notification No. 175/86 as also in the light of the observations made by the Tribunal in the case of TANSI v. CCE, Madras cited above.