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TMI Blog2012 (9) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... emption w.e.f. 1.4.97, the appellant were required to reverse the cenvat credit on the inputs in stock or in process or contained in the finished product lying in stock. Thus, the provisions of Rule 57H(7) are applicable to the appellant. Since the correct facts had been narrated in the SCN hence citation of Rule 57C and not Rule 57H(7), would not vitiate the SCN. Cenvat credit demand upheld. Further, in view of condition (i) of the Notification No. 16/97-CE, the option to avail of the exemption has to be made before effecting first clearances in a FY and such option once exercised, shall be final and cannot be withdrawn in the same FY under any circumstances. Therefore, their plea that if allowed to opt out of the exemption w.e.f. 1.4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of inputs lying in stock as on 1.4.97, which were used in the manufacture of exempted final product. In view of this show cause notice dated 26.9.97 was issued for recovery of this credit from the appellant along with interest and also for imposition for penalty. The SCN invoked Rule 57 C of Central Excise Rules, 1944 for denial of this credit. Show cause notice was adjudicated by the Assistant Commissioner vide order in original dated 8.12.2002 by which cenvat credit demand as made in the show cause notice was confirmed along with interest under Rule 12 of Cenvat Credit Rules, 2002 and besides this, penalty of equal amount was also imposed on the Appellant under Rule13 of Cenvat Credit Rules, 2002. On appeal to the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.4.97 to 31.7.97 had offered to pay full duty in respect of those clearances, to which there was no response from the Department; that if the appellant had been allowed to pay the normal duty in respect of clearances during the period from 1.4.97 to 31.7.97, they would not be required to reverse the cenvat credit in question, and as such their net duty liability would come to only Rs.1,21,712/- and that this plea had been made to the Commissioner (Appeals) but the same was not considered. He, therefore, pleaded that in view of this, the impugned order is not correct. 4. Shri I. Baig, learned Senior Departmental Representative, defended the impugned order and reiterating the finding of the Commissioner (Appeals) in the impugned order emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e department has taken decision in respect of Appellant s request for withdrawing from the exemption scheme w.e.f. 1.4.97 nor they had opted out for the period from 1.4.97 to 31.7.97. He, therefore, pleaded that there is no infirmity in the impugned order. 5. We have carefully considered the submissions made from both the sides and perused the records. There is no dispute about the fact that during the period prior to 1.4.97 appellant were paying duty at concessional rate under notification No.1/93-CE and were availing input duty credit. It is also undisputed that the appellant had filed declaration on 1.4.97 indicating their option to avail the benefit of exemption Notification No.16/97-CE. Till 31st July 1997 the appellant were clearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion w.e.f. 1.4.97, they would not be required to reverse the cenvat credit, in dispute, and their duty liability would be only Rs. 1,21,712/-. We are of the view that in view of condition (i) of the Notification No. 16/97-CE, the option to avail of the exemption has to be made before effecting first clearances in a financial year and such option once exercised, shall be final and cannot be withdrawn in the same financial year under any circumstances. Therefore, there is no question of the Appellant being allowed to opt out of the exemption Notification No. 16/97-CE w.e.f. 1.4.97. Therefore, their plea that if allowed to opt out of the exemption w.e.f. 1.4.97, their net duty liability would be only Rs. 1,21,712/- is without any merit. We fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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