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TMI Blog2018 (1) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue neutral situation, the compliance with the condition of notification 56/2002-CE should not be insisted upon and the appeal allowed, as held by Member (Judicial) - matter referred to Third Member. - E/1236/2009-DB - IO/E/38/2017-EX[DB] - Dated:- 5-12-2017 - Mrs. Archana Wadhwa, Member (Judicial) And Mr. Devender Singh, Member (Technical) Shri. Anuj Sharma, Advocate for the appellants (s) Shri. V Gupta, A.R. for the Respondent(s) ORDER Per: Archana Wadhwa After hearing both the sides duly represented by Shri. Anuj Sharma Ld. Advocate for the appellant and Shri. V. Gupta Ld. AR for the Revenue, we find that the appellant is engaged in the manufacturer of medicines, in their factory located in the area o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osition of penalty. 3. The appellant contended before the lower authorities that they did not avail the Cenvat credit of additional duty of customs inasmuch as the same was paid under Section 3(5) of the Customs Tariff Act and they were under a benefit belief that as the said levy and duty is to neutralise the sales tax etc, they are not entitled to the credit of the sale. It was an inadvertent error on their part, which has in fact, pinched them on their pocket, inasmuch as they had to pay the higher duty in cash. As such they contended that it cannot be a deliberate attempt on their part in as much as they were not benefited by not a availing the credit. They also submitted that subsequently they have availed the credit, which would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the refund of the said amount of duty paid by them in cash, which they have self credited. 6. The entire circumstances lead to only one inevitable conclusion that an assessee located in the area of Jammu, is entitled to the refund of the amount of duty which they pay in cash. If, under a mis-apprehension liability, the assessee has paid the higher duty in cash, they would be entitled to the refund of the same. If the cash payment was to be on the lower side, if the appellant would have availed the Cenvat credit, he would have been entitled to the refund of lower amount. In essenee, it has to be held that the entire situation was the Revenue neutral. The refund is admissible to the appellant only of that amount, which he has already taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them so as to upheld the interest liability. 9. Similarly for imposition of penalty, it has to be established that by adopting by a particular course of action, the assessee was unduly benefited. In the present case instead of being benefited, the appellant faced disadvantage on account of non-availment of credit. As such we find no justification for imposition of penalty on them. 10. In view of the foregoing, we find no merit the impugned order. The same is set aside and appeal is allowed with consequential relief. (Order dictated and pronounced in the court) Devender Singh, Member (Technical) Archana Wadhwa, Member (Judicial) Per: Devender Singh 11. Having gone through the order of Hon'ble Member (J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. The fact that the situation is Revenue neutral does not take away from the settled position of law that the conditions of an exemption Notification have to be followed strictly. This has been laid down in numerous judicial pronouncements of Hon'ble Supreme Court. In one such decision, in the case of CCE, Pondicherry Vs. Honda Siel Power Products Ltd. 2015 (323) ELT 644 (S.C.), where the appellant had paid the duty through cenvat credit when the Notification required payment in cash or through account current, the Hon'ble Supreme Court held as below: 4. We find that the Tribunal has decided the case in favour of the assessee by observing that clearing of goods with payment of Excise Duty with current account was only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articularly since they have attempted to rectify the mistake later. In these circumstances, and by following the decision of Hon'ble Apex Court in Honda Siel Power Products Ltd. (Supra) while the assessee would be denied the benefit of Notification because of noncompliance with the condition thereof, the imposition of interest and penalty are liable to be set aside. 14. In view of the above, I uphold the order of Ld. Commissioner (A) in so far as demand of wrongly availed refund by way of self-credit is concerned. However, the penalty as well as interest demanded by the Revenue are set aside. The appeal is disposed off as above. Devender Singh, Member (Technical) As there are contrary views and difference of opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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