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TMI Blog2018 (8) TMI 892X X X X Extracts X X X X X X X X Extracts X X X X ..... lous position between the two Notifications No.05/2006 with the condition against availment of CENVAT credit and Notification No.02/2008 without any such condition, was removed by the Central Government on 27.02.2010. Therefore, no malafide can be attributed to the respondent-assessee in claiming such CENVAT credit after removal of the anomaly by the Central Government itself. The claim of CENVAT credit in the eye of law by the assessee in the present case appears to be perfectly in consonance with the Notification No.02/2008 dated 01.03.2008. Merely because the assessee in the said period filed its returns in form No.ER-1 indicating the payment of said 8% excise duty under Notification No.15/2009-C.E. dated 07.07.2009, which amended the original Notification No.05/2006-C.E. dated 01.03.2006 and did not mention anything about Notification No.02/2008 dated 01.03.2008, 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. Appeal dismissed - decided against Revenue. - C.E.A.No. 65/2016 - - - Dated:- 25-7-2018 - Dr. VINEE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nother Notification No.02/2008-CE dated 01.03.2008 vide Entry No.48 of Chapter 69, the rate of duty of 8% having been prescribed for such ceramic tiles, without any condition of non-availment of CENVAT Credit in the said Notification No.2/2008-CE dated 01.03.2008, the assessee was not entitled to claim the said CENVAT Credit. He drew our attention towards the finding of the learned adjudicating authority in order (Original) Annexure-A dated 24.07.2013 in paragraph-14 of the said order in which the assessing authority has relied upon the declarations made by the assessee in ER-1 returns filed for the relevant period from 07.07.2009 to 26.02.2010. The relevant paragraph Nos.13 and 14 of the order of the adjudicating authority is quoted below for ready reference. 13. As a result of the amendments to both the Notification Nos.5/2006 CE dated 1.3.2006 and 2/2008 CE dated 1.3.2008 over a period of time, during the period from 7.7.2009 to 26.2.2010, rate of duty applicable under Notification No.5/2006 dated 1.3.2006 (with condition of non-availment of Cenvat credit on inputs) and under Notification No.2/2008 dated 1.3.2008 (without any conditions) were at uniform rate of 8% ad valore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of the Bharuch (Gujarat) factory. 2. After hearing both sides, we find that the issue relates to availability of the benefit of exemption Notification No.02/2008-C.E. dated 01.03.2008 which allows the concessional rate of duty subject to the appellant availing benefit of Cenvat credit. Revenue is of the view that another Notification No.05/2006-C.E. also provides the same concessional rate of duty without availing benefit of Cenvat credit. As such the credit availed by the assessee stands disallowed to them. 3. The assessee s contention is that when Notification No.02/2008-C.E. prescribed same concessional rate of duty and allows availment of credit, Revenue cannot compel them to avail the Notification No.05/2006- C.E. 4. We find that the Tribunal in the appellant s own case reported as Bell Ceramics Ltd., vide Final Order No.A/10580/2014 dated 09.4.2014, by following the earlier order of the Tribunal on identical issue in the case of Savana Ceramics, has allowed the appellant s appeal. Inasmuch as the same issue is involved in the present appeal, we, by following the earlier order, set aside the impugned order and allow the appeal with consequential reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of law arises for consideration of this Court. 10. Having heard learned counsels for the parties, we are of the clear opinion that no substantial question of law arises in the present case requiring our consideration. It is not disputed before us that the Notification No.02/2008 dated 01.03.2008 was also applicable to the assessee in the present case for the period 07.07.2009 to 26.02.2010 in question. The Show Cause Notice of the assessing authority dated 16.03.2011 and the order (Original) Annexure- A dated 24.07.2013 clearly admits this position vide aforesaid quoted paragraph Nos.13 and 14 from the Order-in-Original. The assessee has not claimed CENVAT credit during the aforesaid relevant period in violation of condition No.7. It has started to claim the said CENVAT credit only after 01.03.2010, after the anomalous position between the two Notifications No.05/2006 with the condition against availment of CENVAT credit and Notification No.02/2008 without any such condition, was removed by the Central Government on 27.02.2010. Therefore, no malafide can be attributed to the respondent-assessee in claiming such CENVAT credit after removal of the anomaly by the Central Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of that exemption notification which may give him greater or larger relief. In Unichem Laboratories Ltd. v. Collector of Central Excise, Bombay, (2002) 7 SCC 145: JT 2002 (6) SC 547 , the appellant was a manufacturer of bulk drugs. Exemption was granted to him under one item. He, thereafter, filed a revised classification list categorizing its bulk drugs under the other Head claiming more benefit. The claim was rejected on the ground that the appellant had not claimed the benefit of exemption at the time of filing the classification list and subsequently it could not be done. The appellant approached this Court. 13. ..... 14. ..... 15. ..... 16. In the instant case, the ground which weighed with the Deputy Director General (Medical), DGHS for non-considering the prayer of the appellant was that earlier, exemption was sought under category 2 of exemption notification, not under category 3 of exemption notification and exemption under category 2 was withdrawn. This is hardly a ground sustainable in law. On the contrary, well settled law is that in case of applicant is entitled to benefit under two different Notifications or under two different Heads, he can claim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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