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TMI Blog2011 (8) TMI 981X X X X Extracts X X X X X X X X Extracts X X X X ..... rics have been exported under claim for rebate of duty it is seen that, at the material point of time, there were two rates of duty applicable to cotton fabrics - one a 'nil' rate prescribed under Notification No 29/2004-CE as amended and the other '4% adv.' prescribed under Notification No 59/2008 dated 07/12/2008 Both these rates were unconditional rates. Therefore, it is not the case that the goods have been completely exempted. When two different Notifications prescribed two rates of duty, the assessee is at liberty to opt for whichever is beneficial to him. It is further on record that the assessee had consulted the department and as per the department's advice, the assessee had opted for payment of duty @ 4% under claim for rebate in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aneously another Notification No. 59/2008-CE dated 07/12/2008 was issued prescribing a concessional rate of duty of 4% on cotton fabrics. The appellants were clearing the goods in the domestic tariff area without payment of duty claiming exemption Notification No. 30/2004. However, in respect of exports they were clearing the cotton fabrics either under bond without payment of duty under Rule 19 of the Central Excise Rules, 2002 or on payment of duty @ 4% under claim for rebate. A show-cause notice dated 04/01/2010 was issued to the appellant asking them to pay an amount of Rs.3,26,99,951/- under Section 11A(1) of the Central Excise Act read with Rule 14 of the Cenvat Credit Rules, 2004 on the ground that they had availed CENVAT credit on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d also appropriated an amount of Rs.31,64,578/- paid by the appellant as duty on export clearances of processed cotton fabrics under claim for rebate during the aforesaid period. The appellant is before us against the said order. 3. The learned counsel for the appellant submits that the provisions of Rules 6(1), 6(2) and 6(3) of the Cenvat Credit Rules, 2004 does not apply to export of goods and, therefore, the demand is not sustainable. He further submits that during the material time, there were two Notifications in operation in respect of cotton fabrics - one, Notification No. 29/2004-CE as amended which prescribed a 'nil' rate of duty on cotton fabrics not containing any other textile material. There was another Notification No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2/2009 addressed to the jurisdictional Assistant Commissioner. In the light of the above submissions, they pray for complete waiver of pre-deposit of the amounts adjudged pending decision on their appeal. 4. The learned JCDR appearing for the department reiterates the findings of the Commissioner in the impugned order and submits that Notification No. 29/2004-CE as amended grants complete exemption to cotton fabrics not containing any other material whereas Notification No. 59/2008 grants exemption to other cotton fabrics (that is cotton fabrics containing other textile material) and, therefore, the appellant's contention that there were two rates on cotton fabrics is not factually correct. He further submits that the appellant has nev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the demand amounting to Rs.2,50,81,937/- the cotton fabrics have been exported under bond and, therefore, in terms of Rule 6(6)(v) of Cenvat Credit Rules the demand is unsustainable. As regards the balance amount of Rs.76,81,014/- wherein the cotton fabrics have been exported under claim for rebate of duty it is seen that, at the material point of time, there were two rates of duty applicable to cotton fabrics - one a 'nil' rate prescribed under Notification No 29/2004-CE as amended and the other '4% adv.' prescribed under Notification No 59/2008 dated 07/12/2008 Both these rates were unconditional rates. Therefore, it is not the case that the goods have been completely exempted. When two different Notifications prescribe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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