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TMI Blog2013 (7) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 5A of the Central Excise Act, the manufacturer cannot opt to pay the duty under Notification 59/2008-C.E., dated 7-12-2008 and he cannot avail the Cenvat Credit of the duty paid on inputs. Notification No. 29/2004-C.E. & 30/2004-C.E. can be availed simultaneously will also apply to the amended notification as the nature of notification does not change does not hold good because a specific Circular No. 937/27/10-C.E., dated 26-11-2010 was issued by C.B.E. & C. w.r.t. Notification Nos. 29/2004-C.E. as amended by Notification No. 58/2008-C.E., dated 7-12-2008 and Notification No. 59/2008-C.E., dated 7-12-2008 - F. Nos. 195/933, 934/2010-RA & 195/134/2011-RA - 534-536/2012-CX - Dated:- 4-5-2012 - Shri D.P. Singh, J. REPRESENTED BY : Shri S.J. Vyas, Advocate, for the Assessee. None, for the Department. [Order]. These revision applications are filed by M/s. Arvind Ltd., M/s. Arvind Polycot (A Division of Arbind Products Ltd.) Tal Kalot, Distt. Gandhinagar, Gujarat against the orders-in-appeal passed by Commissioner of Central Excise (Appeals) Ahmedabad-III as detailed below :- S.No. RA No. Applicant RA filed against O-I-A No./ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icant filed appeal before Commissioner (Appeals) who rejected the same. 4. Being aggrieved by the impugned orders-in-appeal, the applicant has filed these revision applications under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds :- 4.1 It is submitted that while granting rebate, the assessment of duty is not open. It is not permissible to make fresh assessment at the time of grant of rebate. The question of verification is different from challenging and amending assessment. The verification envisaged is the factual arithmetical/procedural verification of export and payment of duty. Payment of duty is limited for amount and correlation with export and does not include assessment. Therefore the entire exercise is without the authority of law and order must be set aside with consequential relief. 4.2 It is submitted that there is a policy of giving option to pay or not to pay duty for textile industry. This policy is implemented by enacting separate notifications, one giving complete exemption and the other giving partial exemption. When Notification No. 58/2008, dated 7-12-2008 was issued simultaneously, another Notification No. 59/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are for export applicant has chosen the option of duty payment and this is obviously with intention to avail credit in respect of goods exported. 4.6 In the present case, applicant has taken credit subsequently, i.e. after removals on the basis of Board s Circular No. 845/03/2006-CX., dated 1-2-2007. Kindly refer to our letter dated 28-6-2007 and other letters filed from time to time filed at the time of taking each credit. Therefore the entire facts are before the department at all times. Department has never indicated any objection at any time in past. Even at the time of removal of goods for export on payment the department does not object but on the claim for rebate the objection is taken. This is clearly not benefiting Government. 4.7 Furthermore the scheme of subsequent credit on monthly basis has been permitted specifically by Circular No. 845/03/2006-CX., dated 1-2-2007 and the same is followed by the applicant as can be seen from letters written from time to time. The objection and observations made in para XII of the OIO are therefore incorrect and incomprehensible and irrelevant. 4.8 The applicant had also relied upon the circular of Board permitting simultaneous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. Regarding C.B.E. C. Circular No. 937/27/10-C.E., dated 25-11-2010 on the subject, he stated that if the circular is accepted then it would render Notification No. 59/2008-C.E., meaningless. He further stated the Cenvat credit is also denied by department and applicant has filed appeal before CESTAT. 6. Government has carefully gone through the relevant case records and perused the impugned order-in-original and order-in-appeal. 7. On perusal of records, Government notes that applicants are engaged in manufacture of Cotton Fabrics, Linen Fabrics which they were exporting on payment of duty under Notification No. 29/2004-C.E., dated 9-7-2004. Vide Notification No. 58/2008-C.E., dated 7-12-2008, effective rate of duty for 100% Cotton fabrics was reduced to Nil by amending Notification No. 29/2004-C.E. Another Notification No. 59/2008-C.E., dated 7-12-2008 specified the rate of duty as 4% for cotton fabrics. During the period 1-2-2009 to 31-3-2009, applicants cleared goods for export under claim of rebate on payment of duty @ 4% under Notification No. 59/2008-C.E., dated 7-1-2008 even though there was unconditional exemption from payment of duty vide Notification No. 29/2004 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by Parliament. Similarly the case laws cited by applicant about existence of two notifications, are not applicable to present case since they pertains to goods exported prior to 13-5-2005. 8.3 The above view is fortified by the recent clarification of the Board by its Circular No. 937/27/2010-C.E., dated 26-11-2010 wherein it is clarified that : 2. The dispute was with regard to whether an assessee can avail the benefit of either of the abovesaid two notifications whichever is beneficial to him or he is bound to avail the unconditional exemption under Notification No. 29/2004-C.E. as amended, during the period under dispute in terms of the provisions of Section 5A(1A) of the Central Excise Act, 1944. 3. The matter was examined in the Board. As a substantial question of law was involved, the matter was referred to the Law Ministry for its opinion. The Ministry of Law has opined that the language used in the said Section 5A(1A) is unambiguous and principles of harmonious construction cannot be applied in the instant case in view of the specific provision under sub-section (1A) of Section 5A of the Central Excise Act. The Law Ministry has accordingly concluded that in view o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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