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TMI Blog2018 (7) TMI 850X X X X Extracts X X X X X X X X Extracts X X X X ..... which case the entire balance of cenvat credit lying in his account shall lapse and the same shall not be allowed to be utilized for payment of duty for home consumption or for export - in sub rule 3 (i) ibid, the assessee has to ‘opt‛ for the exemption whereas in sub-rule 3 (ii) ibid, there is no such option available to the assessee and the absolute exemption that may have been brought forth under Section 5A ibid would apply unilaterally to the related final product manufactured by the assessee. It is important to note that the law makers have not incorporated the requirement of payment of cenvat credit equivalent to credit taken by the assessee in respect of inputs lying in stock or in process in sub rule 3 (ii) ibid. This is be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s issued to the appellants proposing that the said balance credit should be treated as lapsed and also proposing imposition of penalty under Rule 15 (2) of CCR. In adjudication, the original authority vide an order dt. 29.10.2009 confirmed the said proposals and also imposed equal penalty under rule 15 (2) of CCR. In appeal, the Commissioner (Appeals) vide impugned order dt. 19.07.2010 set aside the imposition of penalty, however upheld the remaining part of the order of original authority. Hence the appellants are before this forum. 2. Today when the matter came up for hearing, on behalf of the appellant, Ld. Consultant Shri M. Saravanan made oral and written submissions which can be broadly summarized as under : i) Rule 11 (3) (ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) A manufacturer or producer of a final product shall be required to pay an amount equivalent 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le, to be able to impose both a fine and a penalty, one would need to add or both‛ to the end of the phrase. That surely is not the case here. 5.3 Viewed in this context, it is but obvious that the legislature intended the said sub rules 3 (i) and 3 (ii) to be two distinct and separate alternatives, with distinctively different qualifying factors and conditionalities. 5.4 In sub rule 3 (i), the assessee has an option to avail of a particular notification or otherwise; when such assessee takes such option, he will be required to pay an amount equivalent to cenvat credit, if any, taken by him in respect of inputs received for use in the manufacture of the final product and is lying in stock or in process or is conta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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