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TMI Blog2009 (12) TMI 820X X X X Extracts X X X X X X X X Extracts X X X X ..... E., dated 1-3-2002 till 31-3-2003. They opted with effect from 1-4-2003 for availing the value based exemption namely, Notification No. 8/2003-C.E., dated 28-2-2003. They were having some inputs on which the credit was already taken in balance; they were also having certain goods as work in progress; and they also had finished goods in stock. According to the Department, the credit involved in respect of inputs lying as such, inputs contained in work in progress and inputs contained in the finished goods amounted to Rs. 1,31,237/-. Show cause notice dated 16-3-04 was issued alleging that the appellants having opted for the benefit of Notification No. 8/2003 ought to have paid the amount equal to Rs. 1,31,237/- as required under Rule 9(2) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal, the Department filed an appeal and that the Hon ble High Court of Punjab Haryana found no merit in the appeals as reported in [2008 (224) E.L.T. 239 (P H)]. He also adds that inasmuch as the coordinate Bench has already taken decision interpreting Rule 9(2) of Cenvat Credit Rules, 2002 and that the appeal by the Department against the said decision has been rejected by the Hon ble High Court, the decision is binding on the Tribunal and is required to follow the same. 5. Learned DR submits that Rule 9(2) is a self-contained rule governing a situation where an assessee opts for exemption from the whole of the duty under Notification based on the value or quantity of clearances in a financial year. It envisages that in such s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment of duty on any excisable goods, whether cleared for home consumption or for export. 6.2 The wordings of the Rule as above is clear that any manufacturer who is opting for full exemption under value based notification is required to pay an amount equivalent to the Cenvat credit allowed to him in respect of inputs lying in stock or in process or contained in final products lying in stock on the date of option. The said requirement is not dependent upon whether the credit taken was legally taken or utilised. Further, the liability under Rule 9(2) cannot be dependent upon whether the manufacturer has fully utilised the credit or he has still balance of the credit available in his accounts. The provisions relating to recovery cannot aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it clear that Revenue has taken no objection whatsoever to the original taking of credit and its utilization. Thus, both taking of credit and utilization of credit were correct. It is sell settled that credit correctly taken and utilised cannot be demanded. The judgment of the Larger Bench of this Tribunal in the case of Ashok Iron Steel Fabricators and the judgment of the Apex Court in the case of Dai Ichi Karkaria are clearly in respondent s favour. 10. Coming to the submission of the learned DR that assessee opting for exemption must fulfil the terms of the exemption, it is to be noted that exemption is in terms of notification issued from year to year and not in terms of Rule 9(2) of Cenvat Credit Rules, There is no reference or inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o a binding precedent also requires to be considered. 9. In view of the above, I deem it appropriate to direct the registry to place the file before the Hon ble President for considering reference to the Division Bench on the following questions of law : (a) Whether in the absence of availability of sufficient balance to reverse the Cenvat credit involved on the inputs lying in stock inputs in process and inputs contained in finished goods at the time of opting out of Cenvat credit scheme is required to be paid through cash payment/PLA or not? (b) Whether the requirement of payment of amount in terms of Rule 9(2) is independent of recovery under the provisions of Rule 12 of the Cenvat Credit Rules, 2002 which dealt with the recovery ..... X X X X Extracts X X X X X X X X Extracts X X X X
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