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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 ..... bmission of both sides, we recall order dt.8.1.2013 and all the stay applications are restored to their original numbers. MISC petitions filed by the applicants are allowed. 2. Since we are taking up the stay petitions for disposal, the EH application for hearing stay petition filed by M/s.Bannari Amman Spinning Mills Ltd. is dismissed as infructuous. 3. Appeal No.E/395/2011 filed by M/s. Bannari Amman Spg. Mills Ltd. is against Order-in-Original No.43/2011-CE dt. 31.3.2011 and all other appeals are arising out of a common Order-in-Appeal No.137-141/2012 dt. 26.6.2012. 4. Heard both sides and perused the records. 5. The applicant filed these applications for waiver of predeposit of duty along with interest which are tabulated as under : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any other textile material was fully exempted from duty by notification 58/08 and therefore, in terms of sub-section (1A) of Section 5A of the Central Excise Act, they are not eligible to pay duty vide Notification No.59/08. Adjudicating authority confirmed the demand of duty along with interest. Commissioner (Appeals) modified the demand of duty in so far as the applicants are entitled to avail balance 50% capital goods credit of duty paid prior to 7.12.2008 and they are not entitled to avail cenvat credit of duty paid on inputs/capital goods during the exempted period from 07.12.2008 to 06.07.2009 and directed the adjudicating authority for re-quantification accordingly. The assessee filed appeal against demand of duty in respect of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates the findings of the lower authorities. He draws the attention of the Bench to the wordings of section 5A (1A). He submits that in the present case, both the notifications are unconditional and notification No.58/08 granted exemption absolutely. Section 5A (1A) would apply. It is also contended that if there is any dispute, the section will prevail over the provisions of notification.. He also relies upon Board's circular (supra). He submitted that the Board has also discussed this matter with Law Ministry and therefore the applicants should be directed to predeposit entire amount of duty. 10. After hearing both sides and on perusal of both sides, we find that section 5A (1A) reads as under :- SECTION 5A. Power to grant exemption from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h would be look into at the time of appeal hearing. In view of that applicant failed to make a prima facie case for waiver of predeposit of entire amount of duty along with interest. At this stage, Ld. advocate submits that Commissioner (Appeals) modified the adjudication order in so far as recovery of balance 50% capital goods credit prior to 1.7.2008 and the subsequent instalment after 1.4.2009 were dropped. He submits that Commissioner in Order-in-Original No.43/2011-CE dt. 31.3.2011 had not extended such benefit which would come to about Rs.36,35,194/-. 11. Taking into consideration of overall facts and circumstances of the case, we direct M/s.Bannari Amman Spinning Mills Ltd., Unit I to make a predeposit of Rs.1,00,000/- (Rupees one L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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