9911796707
TMI Blog2009 (4) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... 2001 as amended, refund of duty paid from PLA after exhausting Cenvat credit in their account. According to the notification, the manufacturer is required to utilize the whole Cenvat credit available to him on the last date of the month for payment of duty on goods cleared during the month and what ever duty is paid in excess in PLA is refunded. Accordingly, the appellants filed refund claims which were rejected on the ground that the appellants, instead of paying Central Excise duty on CFL @ 8%, which is unconditional effective rate of duty under Notification No. 6/2006-C.E., dated 1-3-2006, paid @ 16% tariff rate. The department has taken a stand that exemption notification is a part of statute and the appellants are bound to avail the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whole of excise duty, it is compulsory for the manufacturer to opt for the same and manufacturer has no choice to pay duty. It is his submission that in this case, since notification provides only partial exemption, the payment of duty at the higher rate was in order, and therefore, department's contention is not correct. Ld. SDR on the other hand submits that the exemption notification provides for exemption and refund of duty paid in cash but such duty should have been at the rate leviable. He drew our attention to the word "leviable" used and it is his submission that in this case, the rate of duty leviable is only 8%, therefore the appellant is not eligible for excess refund. To a query from the bench, he clearly agreed that if the ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and the same department has subsequently chosen to reject the refund claims filed by the appellant in respect of payment of duty from PLA. It also cannot be said that this has been done to encash cenvat credit since Cenvat credit availed is less than even 8% duty liable. Further, we also find considerable force in the arguments advanced by the Ld. Advocate that appellant is entitled to refund equivalent to the amount paid in cash after utilization of the Cenvat credit in full. Even otherwise appellant cannot be prevented from paying duty at 16% instead of 8% in view of the provisions of Section 5A. Section 5A was amended after the Tribunal had rendered several decisions to the effect that manufacturer can chose to pay duty even when the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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