9911796707
TMI Blog2018 (8) TMI 892X X X X Extracts X X X X X X X X Extracts X X X X ..... ncluding that Revenue intends to compel assessee to avail the Notification No.05/2006 - CE when the fact is that it was assessee's decision to avail Notification No.05/2006 - CE? 3. The learned counsel for appellant-Revenue has urged before us that the respondent-Assesee was not entitled to avail CENVAT credit because condition No.7 of the Notification No.05/2006-C.E. dated 01.03.2006 prohibited the assessee from availing any CENVAT credit under CENVAT Credit Rules, 2002 on the manufacture of ceramic tiles manufactured in a factory not using electricity for firing kiln, falling under Chapter 69 vide Entry No.13 of the said Notification No.05/2006-C.E. dated 01.03.2006. He submitted that the said Notification No.05/2006-C.E. dated 01.03.2006 came to be amended by Notification No.58/2008-C.E. dated 07.12.2008 and vide Entry No.6 thereof, the rate of duty was fixed at 4% in place of 8%, which rate of 8% was again restored later on by Notification No.15/2009-C.E. dated 07.07.2009 at Annexure-E. 4. Learned counsel for Revenue, Mr.Aravind K V, submits that condition No.7, which stood throughout including the period in question involved in the present case from 07.07.2009 to 26.02.2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty paid on the inputs used in or in relation to the manufacture of the goods. If the assessee had any intention to shift to any other notification, in this case Notification No.2/2008 CE dated 1.3.2008, they should have done the same prospectively, for the subsequent clearances and there is no provision under any notification to extend the benefit of the notification which was not claimed by the assessee at the time of clearance of the goods, for the previous period. In the light of the above, the assessees were not entitled for the said credit of Rs. 1,11,02,931/- which relates to the period prior to 26.02.2010 and availment of the same by them in March, 2010 is in contravention of the underlying condition under Notification No.5/2006 dated 1.3.2006. Hence, entire credit of Rs. 1,11,02,931/- is liable to be recovered from them along with interest." 6. When the assessee took up the matter further before the learned CESTAT, the learned CESTAT, however, allowed the appeal of the assessee following the view taken by the CESTAT at Ahmedabad in the case of assessee himself on 09.04.2014 and in another case in M/s. Savana Ceramics. The relevant findings of the short order passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on 07.07.2009 with condition No.7 against availment of CENVAT credit and (ii) Notification No.02/2008-CE dated 01.03.2008 was removed by the Central Government, only by the Notification No.11/2010 dated 27.02.2010 deleting Entry No.13 in the Notification No.05/2006 dated 01.03.2006. He, however, submitted that if the assessee can claim CENVAT credit under another valid Notification, viz., No.02/2008 dated 01.03.2008 by availing the CENVAT credit for the aforesaid period, he cannot be deprived of the same merely because another Notification No.05/2006 as amended on 07.07.2009 also was operating during the same period with the condition against availment of CENVAT credit and the assessee is entitled to choose a more beneficial or advantageous notification applicable to him and there is no malafide on the part of the assessee to claim such CENVAT credit for the aforesaid period of 07.07.2009 to 26.02.2010 under the aforesaid Notification No.02/2008-C.E. dated 01.03.2008. 9. He also submitted that, the said matter stood concluded with the decision of the Tribunal in the case of M/s. Savana Ceremics against which no appeal was filed by Revenue. Even though, the appeal against the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008, though the said later Notification also equally applies for the said period, the respondent-assessee cannot be bound down to abide by the condition No.7 of the said Notification No.05/2006-C.E. dated 01.03.2006. 13. We are supported for our aforesaid view by the decision of the Hon'ble Supreme Court in the case of Share Medical Care vs. Union of India reported in 2007 (209) E.L.T 321 (S.C.), wherein the Hon'ble Supreme Court held that if two exemption notifications are applicable in a given case, the assessee may claim benefit of the more beneficial notification. This position of law was re-iterated by the Apex Court following its earlier decisions in the case of Collector of Central Excise, Baroda vs. Indian Petro Chemicals and H.C.L. Limited v. Collector of Customs, New Delhi. We quote below paragraph Nos.12 and 16 of the said judgment for ready reference: "12. In Collector of Central Excise, Baroda v. Indian Petro Chemicals, (1997) 11 SCC 318, this Court held that if two exemption notification are applicable in a given case, the assessee may claim benefit of the more beneficial one. Similarly, in H.C.L Limited v. Collector of Customs, New Delhi, (2001) 130 E.L.T. 405 (S ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
