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TMI Blog2010 (8) TMI 706X X X X Extracts X X X X X X X X Extracts X X X X ..... as paid the differential duty and interest, that would not take away his right to claim exemption, if he is so entitled. Mere payment of normal duty on some consignments, or on demand, payment of differential duty and interest thereon, would not amount to assessee opting out of Notification to which he has opted at the commencement, no merit in this appeal, Appeal is dismissed accordingly - C.E.A. No. 78 of 2008, - - - Dated:- 20-8-2010 - N. Kumar and H.S. Kempanna, JJ. Shri M.V. Chandra Shekara Reddy, Advocate, for the Appellant. [Judgment per : N. Kumar, J.]. The Revenue has preferred this appeal against the order of the Tribunal [2008 (227) E.L.T. 419 (Tri. - Bang.)] granting the benefit of the Notification No. 9/2002-C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to opting out of the Notification. When the duty paid is higher than the concessional rate and when there is no unjust enrichment pointed out by the department, the assessee cannot be denied the benefit of refund and therefore, it allowed the appeal by holding that the assessee is entitled to claim refund. Aggrieved by the same, the Revenue has filed this present appeal. 3. The learned counsel for the appellant contends that, when once the assessee availed the benefit of Notification and before the expiry of the period, on some commercial consideration which are not disclosed, they pay the duty at the normal rate, it amounts to assessee opting out of the Notification and is not entitled to refund of the excess duty paid. In fact, when R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nefit of exemption during a financial year. One of the terms of the Notification claiming exemption is that once having opted for the exemption, a manufacturer cannot withdraw from the same during the remaining part of the financial year. If it is withdrawn, then the assessee would not be entitled to the benefit of the said Notification. It is in that context, in the aforesaid judgment, it is stated that once the assessee opts to withdraw from the benefit of the said Notification, then he is liable to pay normal duty for the entire financial year. That was the case where after withdrawing from the exemption, they have claimed duty under MODVAT credit. It is in that context, it was held that when assessee opt for exemption under Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay duty under the Notification at concessional rates, it cannot be held against him. That is precisely what the Tribunal has done. When the assessee opted for concessional rate of duty under the Notification which was applicable to him and the duty paid at concessional rate, merely because in respect of some consignment normal duty was paid and on being demanded, he has paid the differential duty and interest, that would not take away his right to claim exemption, if he is so entitled. Mere payment of normal duty on some consignments, or on demand, payment of differential duty and interest thereon, would not amount to assessee opting out of Notification to which he has opted at the commencement. In that view of the matter, we do not fin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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