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TMI Blog2017 (9) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... ew financial year 2005-2006, they cannot switch over to the SSI exemption in the middle of the year. Held that: - Evidently, the appellants did not opt for availing exemption available to small scale industries in terms of Notification 8/2003. We are not convinced by the argument of the appellant that they have never given in writing their option not to avail exemption under this notification. Clearly, the appellants paid duty at the normal tariff rate for 5 months from 01/04/2005 without opting for SSI exemption under Notification 8/2003. It is clear that they have specifically opted not to avail the exemption during this period. Their plea that they have not filed written option in this regard will not help their case. Their failure to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cenvat Credit Rules, 2004. During the year 2004-2005, the appellants cleared goods on payment of duty availing concession under Notification 9/2003-CE dated 01/03/2003, with Cenvat credit facility on the inputs. In terms of the said notification, the appellants have option to avail Cenvat credit facility and to pay duty at 60% of normal rate of duty for the goods cleared for home consumption upto a value of Rs. One crore. The said notification was rescinded w.e.f. 01/04/2005. From that date, the SSI unit has only two option namely, either to avail exemption under Notification 8/2003-CE dated 01/03/2003 upto Rs. One crore value of clearance without availing Cenvat credit on inputs, or pay Central Excise duty at the tariff rate alongwith fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of Rule 25 of Central Excise Rules, 2002 readwith Section 11AC of the Central Excise Act, 1944. On appeal, the Commissioner (Appeals) upheld the original order. 3. The learned Counsel for the appellant submitted that the appellants have correctly availed exemption from payment of duty under Notification 8/2003-CE for the period 01/09/2005 to 31/03/2006 on the value of ₹ 59,90,493/-. The impugned order erred in presuming that, as the appellants continued to pay duty even after 01/04/2005, they have not intended to avail Notification 8/2003. It is the case of the appellant that they have never exercised option in writing not to avail exemption under Notification 8/2003. Hence, the question of withdrawing the same does not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t opt for availing exemption available to small scale industries in terms of Notification 8/2003. We are not convinced by the argument of the appellant that they have never given in writing their option not to avail exemption under this notification. Clearly, the appellants paid duty at the normal tariff rate for 5 months from 01/04/2005 without opting for SSI exemption under Notification 8/2003. It is clear that they have specifically opted not to avail the exemption during this period. Their plea that they have not filed written option in this regard will not help their case. Their failure to file a written letter cannot add to the benefit of the appellant. Their payment of duty upto 31/08/2005 clearly shows that they have not opted for e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 5 months. They have also availed Cenvat credit on inputs for all these period. Thereafter, they chose, in the middle of the year to go for SSI exemption. We find such action is not sanctioned by the provision of the said notification. Regarding, the demand with extended period and penalty under Section 11AC, we note that it has been recorded in the show cause notice that while surrendering the registration certificate the appellants indicated that they were going to stop the manufacturing operation. No information was provided regarding switching over to SSI exemption. As such, we find no merit in the submission of the appellant against the penalty imposed on them. 6. The appellants pleaded for recalculation of duty demand considering ..... X X X X Extracts X X X X X X X X Extracts X X X X
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