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TMI Blog2013 (12) TMI 456X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Section 5A (1A) of the Act – the applicant failed to make a prima facie case for waiver of pre-deposit of entire amount of duty – assessee directed to make a pre-deposit of Rupees one Lakh as pre-deposit – upon such submission rest of the duty to be stayed till the disposal – partial stay granted. - E/432/2012, E/431/2012, E/434/2012, E/435/2012 - MISC ORDER No.42785-42789/2013, 42790/2013, 42792-42797/2013 - Dated:- 12-11-2013 - Shri P.K. Das and Shri Mathew John, JJ. For the Appellant : Shri M.S. Nagaraja, Advocate For the Respondent : Shri M. Rammohan Rao, DC (AR) ORDER Per P.K. Das; 1. A common issue is involved in these applications and therefore all are taken up together for disposal. Applicant filed these a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, the Commissioner (Appeals) directed the adjudicating authority to re-quantify the demand of duty. Ld. advocate submits that the original authority has not quantified the demand. However, according to him, the demand would be approximately Rs.5,15,524/- and Rs.2,58,237/- respectively. 7. The relevant facts of the case, in brief, are that the applicants are engaged in the manufacture and export of cotton yarn not containing any other textile material at their various units. During the period, 7.12.2008 to 06.07.2009, they had availed the benefit of concessional rate of 4% in terms of Notification No.59/08 dt. 4.12.2008 for export of the goods and claimed rebate of duty. They have also availed the benefit of Notification No.58/2008 dt. 7.12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her notification No.30/04 dt. 9.7.04 which provides NIL rate of duty subject to the condition that credit of duty on inputs cannot be taken under Cenvat Credit Rules, 2002. Thereafter NotificationNo.59/08 came which provided 4% duty without any condition. He submits that applicant had an option to avail the benefit of notification 58/08 (NIL rate of duty) or 59/08 (4% duty). He submits that they have availed both the notifications and therefore cenvat credit cannot be denied on the capital goods. He also points out that they have not taken credit on input services as alleged in the SCN. He submits that Section 5A (1A) would apply where there is only one notification giving exemption unconditionally. It is contended that the lower authoritie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1A) For the removal of doubts, it is hereby declared that where an exemption under sub-section (1) in respect of any excisable goods from the whole of the duty of excise leviable thereon has been granted absolutely, the manufacturer of such excisable goods shall not pay the duty of excise on such goods. 10.1. On a plain reading of section 5A (1A), it is apparent that where an exemption from whole of duty of excise has been granted absolutely, the manufacturer of such excisable goods shall not pay the duty of excise on such goods. The reading of section 5A (1A) would make us understand that where there is any other duty leviable such as Tariff rate, the assessee has to avail exemption notification granted absolutely. In the present case, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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