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TMI Blog2009 (10) TMI 756X X X X Extracts X X X X X X X X Extracts X X X X ..... Deputy Commissioner on 9-8-2004 with reference to four different show cause notices. The said show cause notices were issued on 11-5-2004 in relation to rebate claim made by the respondents. The Deputy Commissioner by his orders had rejected the said rebate claims. The Commissioner (Appeals) has set aside those orders and has allowed the rebate claim in all four matters. Hence, the present appeal. 3. It is the case of the appellants that the respondents were engaged in manufacture of stainless steel falling under heading 7323.90 of the schedule to the Central Excise Tariff Act, 1985. The said product was exempt from the payment of excise duty under Notification No. 10/2003-C.E., dated 1-3-2003. However, the respondents paid the duty at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the Tribunal in the case of Reliance Industries Limited v. CCE & Cus., Ahmedabad reported in 2003 (152) E.L.T. 423 (Tri.-Mumbai). However, the said decision is under challenge by the department before the Hon'ble Supreme Court. 5. On the other hand, learned Advocate for the respondent drawing our attention to Rule 6 of the Cenvat Credit Rules, 2002 and further placing reliance in the decision of Commissioner v. Jayant Oil Mills reported in 2009 (235) E.L.T. 223, CCE, Delhi-I v. Punjab Stainless Steel reported in 2009 (234) E.L.T. 605, CCE & Cus. (Appeals), Ahmedabad v. Narayan Polyplast reported in 2005 (179) E.L.T. 20 (S.C.), Hico Products Ltd. v. CCE reported in 1994 (71) E.L.T. 339 (S.C.), CCE, Pune v. Pudumjee Pulp & Paper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right of the asseesee either to avail the exemption or to pay the duty is no more res integra as the same has been finally set at rest in the matter of Jayant Oil Mills read with the order in Pudumjee Pulp & Paper Mills case. As regards the amended provision of Section 5A are concerned, learned Advocate submitted that the same would not be attracted in the matter in hand as the claim for rebate relates to the period prior to coming into force of the amendment to Section 5A of the said Act. 6. It cannot be disputed that Commissioner (Appeals) by the impugned order has granted the rebate essentially based on the ruling in Reliance Industries case read with the decision in Hico Products. In Reliance Industries case, the Tribunal had held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise Act, 1944 and the rate of duty is prescribed by the Tariff Act. Therefore, once the duty is validly levied in accordance with the provisions of the statute, the said levy does not disappear or cannot get obliterated merely because by virtue of a notification, partial or full exemption is granted. Therefore, there is no question of an assessee exercising any option as such. There are two rates of duty prescribed by the statute : [1] as per the Tariff Act, and [2] As per the exemption notification. An assessee may pay duty, in such circumstances, either at the prescribed rate or at the rate specified in the exemption notification. Revenue cannot insist, unless the statute provides for such a situation, that in such a factual matr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... empted) as well non-excisable goods. It is also clarified that the benefit of input stage rebate can be claimed on exported goods of all finished goods. whether excisable or not. In view of the above provisions of Central Excise Rules which has been clarified in manual a manufacturer is entitled for credit in respect of inputs used in exported goods whether exempted or dutiable. Further, if the goods were dutiable and exported under bond without payment of duty the manufacturer is entitled for refund of duty paid on inputs. In these situation the manufacturer who exported the goods which are exempt from payment of duty cannot be put on disadvantageous position". 13. In Pudumjee Pulp & Paper Mills case, the Apex Court while dealing with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal to that extent, the Apex Court set aside the decision of the Tribunal in so far as it related to the demand of duty. The matter therein also related to the period prior to March 1987. 17. In Parle Exports case, it is essentially on the point of interpretation of exemption notification, and has absolutely no relevancy to the matter in hand. 18. In the facts and circumstance of the case as narrated above and under the law laid down by the Apex Court and in other decisions, we find hardly any scope for interference in the impugned order. However, as rightly pointed out by the learned DR, it is to be noted that the provisions of Section 5A(1A) are apparently clarificatory in nature and, therefore, it cannot be said that they woul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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