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TMI Blog1993 (12) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the benefit of Notification No. 75/87 dated 1-3-1987 as amended on the ground that the appellants were availing Modvat facility from their very first clearance. Accordingly, the Asstt. Collector held that the appellants have to pay full rate of duty of the effective rate and hence confirmed the duty demand of Rs. 3,17,286/-. The contention of the appellants before the Collector (Appeals) had been that the Assistant Collector cannot compel the appellants to the benefit of Notification No. 75/87, dated 1-3-1987, as they had volunteered to forego the Modvat credit but did not want to forgo the benefit of Notification No. 75/87 dated 1-3-1987. The ld. Collector (Appeals) did not appreciate the stand of the appellant. The ld. Collector (Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the first slab of concession cannot be denied to the assessee. He referred to Trade Notice No. 16/91 dated 14-7-1991, which resulted in the controversy and confusion in the mind of the assessee. He also referred to Trade Notice No. 10/91 dated 1-2-1991 issued by Madurai Collectorate and also T.N. 135/GL 75 dated 18-12-1991 and also Board s instruction dated 3-12-1991 issued in this regard. Referring to the explanation in the notification, the ld. Consultant argued that benefit is extended for one year and not in piecemeal manner. He argued that the Trade Notices were binding on the field officers. In support of his argument, ld. Advocate relied on the following rulings: (1) Indian Dyestuff Industries Ltd. v. Union of India - 1990 (47) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Board s earlier instructions, should not be unsettled by invoking Section 11A. Trade Notice 135/GL dated 18-12-1991 states that assessee will have option to pay duty on fully exempted goods; which option had not been granted by earlier Trade Notice dated 8-2-1991, it was clarified that the assessee could opt to pay duty and it shall have prospective effect only. Trade Notice dated 9-5-1988 issued by Delhi Collectorate also clarifies that if the assessee chooses to pay the duty in spite of the goods being fully exempted, MODVAT credit would not be denied on such duty paid inputs if used in the manufacture of final products. Therefore, as can be seen from these circulars and Trade Notices, there is no clarification that the facility opt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nied on the ground that the option has been exercised during the course of the financial year? We do not think so, as it is not reasonable to deny the benefit of first slab of the notification, on the ground that the switching over has been done during the course of the financial year. This portion of the order of the ld. Collector is not supported by any reasoning and also not based on the strength of any provision of law or any case law. Once, it is held that they can switch over to the benefit of the notification, then automatically the benefit of the notification will flow. The appellant is only required to reverse the credit, if they have already taken. In this case, the department is denying the benefit and claiming the short levy, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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