2006 (10) TMI 358 - AT - Central Excise

Summary

Issues involved: Appeal against order rejecting appeal and upholding Order-in-Original, two issues in appeal: (i) Option to pay Excise Duty when product is exempted, (ii) Jurisdictional Excise Authorities questioning credit on valid duty paying documents.

Issue (i) - Option to pay Excise Duty when product is exempted:
The Commissioner (Appeals) held that the assessee does not have the option to pay duty when goods are unconditionally exempted. Any duty paid on exempted goods is to be treated as deposits under Section 11D of the Central Excise Act, 1944. The appellants wrongly availed credit on Lidocaine/Lignocaine, knowing they are unconditionally exempted Anesthetics. The Supreme Court observed in a related case that there is no revenue implication in such cases, indicating revenue neutrality. The appellants argued that various decisions, including Reliance Industries Ltd. v. CCE, Ahmedabad and others, support the assessee's option to avail exemption or pay duty, and that exemption cannot be forced upon an assessee.

Issue (ii) - Jurisdictional Excise Authorities questioning credit on valid duty paying documents:
The impugned order did not address this issue at all. The matter is remanded back to the Commissioner (Appeals) for re-examination in light of the decisions mentioned, providing an opportunity for both sides to make submissions and present further case laws. The appeal is allowed for remand in the above terms.