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TMI Blog1999 (1) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... 73 84 of the Central Excise Tariff Act (CETA), 1985. The appellant has claimed exemption under Notification 75/87, dated 1-3-1987 under which he has no option to avail Modvat upto the exemption of Rs. 5 lakhs to pay concessional rate of duty at 24% ad valorem. Show cause notices dated 6-11-1992, 5-5-1993 and 26-5-1993 for the period from 19-5-1992 to 26-2-1993, were served upon him to show cause why Rs. 1,28,895.02, Rs. 35,015.45 and Rs. 34,589.20 amounts should not be recovered form him for having incorrectly availed Modvat credit of Rs. 1,98,499.67. In the personal hearing dated 6-7-1993, the appellant appeared thrugh Shri J.P. Laboto and submitted the written submissions dated 3-7-1993 in response the Show cause notice. After perusing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication 75/87, there are two stages namely one below Rs. 5 lakhs and the other above, regarding the clearances. Small scale unit is bound by it. When final product is exempted, no Modvat credit is premissible. Taking modvat and paying duty at 24% is not correct as per the notification, for first Rs. 5 lakhs. No separate account is shown to show the crossing of the limits. It is replied that the duty is paid at a concessional rate with the understanding that if it is paid, Modvat credit can be taken to pay duty on the final product. Benefit availment is an optional one. Final product does not come in the optional category. The department could have told the appellant that he is not entitled to benefit. 3. The point for consideration if whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is a total exemption of clearance upto first Rs. 5 lakhs. This is an admitted fact. When once the appellant avails the benefit of notification, he is bound by it. When there is no duty payment under this notification, the question of availing Modvat credit does not arise. The payment of duty by the appellant voluntarily within first Rs. 5 lakhs does not enable him to avail the Modvat credit. If he had not opted for the availment of benefit under the notification, he would have got the benefit of Modvat credit. Under these circumstances, the order in original has correctly held that he was not entitled to Modvat benefit. The 1990 (47) E.L.T. 389 would have helped the appellant if he had not opted for the notification. In the absence of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on while paying the duty at the rate of 24% on first Rs. 5 lakhs clearance cannot be upheld as notification is clear. As contended by the ld. DR, there is no clear account showing the exceeding of the clearnace beyond the limits. prescribed under the notification. There is no restriction under the Notification 75/87 regarding the availment of the Modvat credit, as contended by the appellant. But, when the notification prescribes that upto Rs. 5 lakhs clearance there is a exemption, it automatically means that there is no duty liability, and Modvat credit cannot be availed. When the appellant is availing the notification, he is bound by it. In the written submission, it is stated that the clearance did not exceed Rs. 15 lakhs limit. contempl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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