2016 (3) TMI 393 - AT - Central Excise

Entitlement to exemption - Blue Star Pre Fabricated Building consisting of insulated panels - notifications nos. 17/98 CE dated 18/9/1998 and Notification No. 5/99 CE dated 28/2/1999 - Held that - Excise duty at the tariff rate i.e. 8% despite the exemption. Notification No. 17/98 CE dated 18/9/1998 and Notification No. 5/99 CE dated 28/2/1999 were available. Prior to insertion of subsection (1A) w.e.f. 13/5/2005 it was not mandatory for a assessee to avail the exemption notification accordingly it was a option available to the assessee either to avail the exemption or to pay the duty as per rate specified in the Central Excise Tariff. Therefore the revenue cannot insist the respondent that they should have compulsorily availed the exemption notifications nos. 17/98 CE dated 18/9/1998 and Notification No. 5/99 CE dated 28/2/1999, for this reason in our view whole proceedings for recovery of an amount of ₹ 5,94,493/- and appropriation thereof was illegal. Demand of an amount u/s 11D - Cenvat / Modvat Credit reversed towards exempted goods shown and claimed in the Invoice - - As regard the demand of ₹ 6,47,313/- paid under Rule 57CC by invoking Section 11D, we find that it is very clear from the invoices that respondent have not recovered the amount of 8% reversed by them under Rule 57CC. This was correctly observed by Ld. Commissioner (Appeals). The revenue also, on the contrary, could not produce any evidence to support their allegation of recovery of the said amount by the respondent, therefore the demand under Section 11D is not correct. - Decided against revenue

Summary

Issues:
1. Applicability of exemption notifications under Central Excise Tariff Act, 1985.
2. Recovery of duty under Rule 57CC and Section 11D.
3. Interpretation of Section 5A regarding exemption provisions.

Issue 1: Applicability of exemption notifications under Central Excise Tariff Act, 1985:
The case involved the respondent, a manufacturer of Air Conditioners and Pre-fabricated buildings, availing modvat/Cenvat facility. The dispute arose regarding the exemption notifications, specifically Notification No. 17/98 CE and 5/99 CE. The Revenue contended that the respondent should have availed the exemption and not recovered 8% duty from customers. The Tribunal analyzed Section 5A of the Act, which clarified that prior to a certain amendment, it was not mandatory for the assessee to avail the exemption. The Tribunal held that the option to avail the exemption or pay duty as per the tariff rate was with the assessee. Therefore, the demand for recovery of duty and appropriation was deemed illegal as the respondent had paid duty at the tariff rate despite the exemption.

Issue 2: Recovery of duty under Rule 57CC and Section 11D:
The dispute further involved the recovery of duty under Rule 57CC and Section 11D. The Revenue alleged that the respondent had recovered the 8% duty under Rule 57CC from customers and demanded repayment under Section 11D. However, the respondent argued that the duty paid under Rule 57CC was not recovered from customers, as evidenced by sample invoices. The Tribunal examined the invoices and found no evidence of recovery of the 8% amount. Consequently, the demand under Section 11D was deemed incorrect, as the Revenue failed to substantiate their claim of recovery by the respondent.

Issue 3: Interpretation of Section 5A regarding exemption provisions:
The Tribunal's analysis of Section 5A clarified that the assessee had the discretion to avail the exemption or pay duty as per the tariff rate, as per the provisions prior to a specific amendment. This interpretation was crucial in determining the legality of the demand for recovery of duty and appropriation. The Tribunal upheld the Commissioner's decision, emphasizing that the Revenue's appeal lacked merit, and dismissed it based on the findings regarding the exemption provisions and recovery of duty under Rule 57CC and Section 11D.

In conclusion, the Tribunal's detailed analysis of the exemption notifications, recovery of duty, and interpretation of Section 5A led to the dismissal of the Revenue's appeal, affirming the Commissioner's decision in favor of the respondent.