2006 (11) TMI 14

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..... im for credit of duty – It is an option to assesse either he pay duty or not - Later clarification is made in this regard.
[Order]. - This is an appeal filed against the Order-in-Original No. 04/Commissioner(Adjudication)/2005 dated 7-3-2005 passed by Commissioner of Central Excise (Adjudication), Ahmedabad. 2.Heard both sides. 3.The relevant facts of the case, in brief, are as follows. 4.Th .....

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..... and the ultimate tax-bearer is the consumer. Contradicting judgments have been quoted. Some in support of the contention that the notifications cannot be forced on the assessee and some in support of the contention that there is no option not to avail an unconditional notification. 6.It is appropriate to reproduce the following from the Order of the Commissioner :- "50.......................... .....

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..... cation has to be read to be part of the statute [e.g. Collector v. Parle Exports - 1988 (38) E.L.T. 741 (SC) = AIR 1989 SC 644]. It can be argued that an assessee has an option to accept, or not to accept such an exemption would be to say that he has an option or by option not to go by the provisions of the statute.' 51.The above view is based on the observation of the Apex Court in the case of C .....

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..... the exemption cannot be negated by an assessee by opting to pay duty on exempted goods and collect it from their customers. I find that in case of an exemption notification giving full exemption to specified goods without any condition, the manufacturer has no condition to fulfill. This exemption is granted to the goods and is not dependant on any action on the part of the assessee. Once the goods .....

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..... reby 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." It is noticed that the amendment dated 13-5-2005 is only clarificatory in nature. 8.Therefore, I do not find any reason to interfer .....

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