2016 (8) TMI 626 - AT - Central Excise

Cenvat credit - inputs work in progress and finished goods lying in stock under Notification No. 15/2009 dated 07.07.2009 by making the payment of duty at the rate of 8% - Held that - it is found that in this case, the Notification No. 15/2009 ibid came into effect on 07.07.2009, on the said day the respondent were entitled to avail the benefit of said Notification, although the respondent did not intimate to the department for availing the benefit of said Notification, but merely non-intimation to the department does not taken away right of the respondent to avail the said Notification. There are two parallel notifications are available to the respondent. Moreover by availing the benefit of Notification No. 15/2009 dated 07.07.2009, the respondent were paying duty on their goods and clearing the same which was accepted by the Revenue. In these circumstances, the benefit of the Notification No. 15/2009 dated 07.07.2009 cannot be denied w.e.f. 07.07.2009. As per two parallel notifications are available to the respondent, therefore the respondent can choose any notification which is beneficial to him, the same view was taken in the Apex Court in the case of M/s Share Medical Care Vs. UOI 2007 (2) TMI 2 - SUPREME COURT OF INDIA . - Decided against the Revenue

Summary

Issues:
Interpretation of Notification No. 15/2009 dated 07.07.2009 and its applicability over Notification No. 5/2006-CE dated 01.03.2006.

Analysis:
The case involved a dispute where the respondent initially availed the benefit of Notification No. 5/2006-CE dated 01.03.2006, which required them not to avail Cenvat Credit on inputs. Subsequently, Notification No. 15/2009 dated 07.07.2009 was issued, allowing a duty rate of 8% on goods without any conditions, enabling the assessee to avail Cenvat Credit on inputs. The respondent, without intimating the department, availed Cenvat Credit on inputs, work in progress, and finished goods under the new notification and cleared them at the 8% duty rate. A show cause notice was issued to deny the Cenvat Credit during the period between the two notifications. The Adjudicating Authority denied the credit, leading to the appeal before the Ld. Commissioner (Appeals).

The Ld. Commissioner (Appeals) granted the benefit of Notification No. 15/2009 dated 07.07.2009 to the respondent, relying on a previous decision. The Revenue, dissatisfied with this decision, appealed to the Appellate Tribunal CESTAT CHANDIGARH. The Revenue argued that since the respondent had previously declared their availing of benefits under Notification No. 5/2006-CE dated 01.03.2006 to the department on 21.01.2010, they were not entitled to the benefits of the new notification from 07.07.2009.

After hearing both parties, the Tribunal found that the respondent was entitled to avail the benefits of Notification No. 15/2009 dated 07.07.2009 from the day it came into effect, despite not informing the department immediately. The Tribunal noted that the respondent was paying duty on their goods under the new notification, and the Revenue had accepted this practice. The Tribunal emphasized that the respondent had the option to choose the more beneficial notification, as established in a previous Supreme Court case. Therefore, the Tribunal upheld the decision of the Ld. Commissioner (Appeals) and dismissed the appeal filed by the Revenue.