2016 (4) TMI 493

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..... ed by the Appellant by upholding Order-in-Original dated 24.09.2008. 2. Shri N.K.Chowdhury (Advocate) appearing on behalf of the Appellant argued that Appellant is a manufacturer of excisable goods - Garden Rakes, Forks, Box Hinges falling under sub-heading 8201 of Central Excise Tariff Act, 1985. That during the period July, 2006 to September, 2006 Appellant paid duty on the above goods and exported the same under claim of rebate. That department did not take any objection to the payment of duty and claim of rebate by the Appellant. That subsequently it was observed by the department that the goods manufactured by the Appellant were fully exempted and chargeable to Nil rate of duty under Notification No.5/2006-CE dated 01.03.2006. The dep .....

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..... Central Excise Rules, 2002. That similarly in the case of Commissioner of C.Ex., Ahmedabad-III v. Gujarat Ambuja Exports Ltd.(supra) Cenvat Credit was held admissible for refund under Rule 5 of Cenvat Credit Rules, 2004, when the goods were exported under bond without payment of duty. It was his case that the relied upon case laws are thus not applicable to the facts of the present case. It was strongly argued by the Ld.AR that suo motu payment of duty does not make the goods dutiable and as per the provisions contained in Section 5A of the Central Excise Act, 1944 an assessee has no option but to avail of an exemption notification. The Ld.AR, therefore, strongly defended Order-in-Appeal dated 15.09.2011 passed by the First Appellate Author .....

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..... ted goods does not make the goods dutiable. As per the provisions contained in Section 5A of Central Excise Act, 1944, when there is an unconditional exemption Notification then an assessee/manufacturer shall not pay duty of excise on such exempted goods. Further as per Rule 6(3) of the Cenvat Credit Rules, 2004 when any common inputs are used in the manufacture of dutiable and exempted goods then Appellant is required to pay an amount equivalent to 10% on the value of exempted goods as demanded by the Department. So far as the provisions contained in Rule 6(6) of Cenvat Credit Rules, 2004 are concerned, the case of the Appellant is that even exempted goods are excisable goods, therefore, amount under Rule 6(3) cannot be denied if the goods .....

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