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TMI Blog2015 (11) TMI 1337X X X X Extracts X X X X X X X X Extracts X X X X ..... orce in the findings of the Adjudicating authority in this respect in the impugned order. The same cannot be sustained. - Impugned order is set aside - Decided in favour of assessee. - Appeal No.E/13707-13709/2013; E/EXTN/14167/2014 - Order No. A/11668-11670/2015 - Dated:- 17-11-2015 - MR. P.K. DAS, MEMBER (JUDICIAL) AND MR. P.M. SALEEM, MEMBER (TECHNICAL) For the Petitioner : Shri Prakash Shah, Shri Rahul Gajera - Advocates For the Respondent : Shri Sameer Chitkara, A.R. (Addl. Commissioner) ORDER Per: P.M. Saleem 1. These appeals are filed by M/s Supertex Industries (Assessee-Appellant) and the employee of the Assessee, aggrieved by the common Order-in-Original issued by Commissioner, Central Excise Service Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivalent to the CENVAT credit, if any, taken by him in respect of inputs received for use in the manufacture of the said final product and is lying in stock or in process or is contained in the final product lying in stock, if, - (i) he opts for exemption from whole of the duty of excise leviable on the said final product manufactured or produced by him under a notification issued under section 5A of the Act; or (ii) the said final product has been exempted absolutely under section 5A of the Act, and after deducting the said amount from the balance of CENVAT credit, if any, lying in his credit, the balance, if any, still remaining shall lapse and shall not be allowed to be utilized for payment of duty on any other final product w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2007, and has got only prospective effect. Since they had opted for the benefit of notification on 01.04.2006, a date prior to that i.e. 01.03.2007, these provisions are not applicable to them. He also argued in the alternative that even if there is violation of sub-rule (3) of Rule 11 of the CENVAT Credit Rules 2004, action for the same can be taken under the provisions of Rule 14 15 of CENVAT Credit Rules 2004, and denial of the benefit of exemption provided under Notification No.30/2004-CE is not justified, when the conditions under the said notification have been fulfilled. 5. The learned Counsel also submitted that the same Adjudicating authority on identical issue in the case of M/s Rungta Rayong Tex Pvt.Ltd had dropped the dema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso cleared the finished goods in stock on payment of duty. Therefore, they had met with the conditions of notification on the date of opting for the benefit of notification. They did not take any fresh credit on the inputs received subsequent to the said date. These facts are not disputed. The bone of contention is regarding the excess credit the appellant had in their account on 01.04.2006. There were no instructions or legal requirements to expunge (lapse) the said excess credit on 01.04.2006. However, by introduction of sub-rule (3) of Rule 11 of the CENVAT Credit Rules 2004 on 01.03.2007, such provisions to lapse, such excess credit was introduced. We find force in the arguments of the learned Authorised Representative that the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 2004 should invite necessary action under Rule 14 15 of CENVAT Credit Rules 2004 only and cannot be extended to the extent of denying the benefit of the substantial notification for that mere reason. We therefore, do not find force in the findings of the Adjudicating authority in this respect in the impugned order. The same cannot be sustained. 8. In view of the above analysis and the reasons contained therein, we set aside the impugned order. Consequently, the penalty imposed on the employee of the Appellant does not survive. The same is also set aside. 9. All the appeals are allowed. The application of extension of stay order filed by the Appellant is dismissed as infructuous. (Dictated Pronounced in Court) - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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