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TMI Blog2019 (9) TMI 1009X X X X Extracts X X X X X X X X Extracts X X X X ..... t contradiction with each other. Circular No.99/2008, dated 11.12.2008 makes it clear that where there are multiple Notifications operating simultaneously in respect of the same commodity and extending different benefits, an option must be given to the assessee to elect and choose the Notification that would be most beneficial to it. Circular No.937/2010, dated 26.11.2010 on the other hand, limits the choice to only the Notification granting unconditional exemption. This does not stand to reason. All the Notifications providing multiple choices to an assessee for tax treatment of the same commodity have been issued by one and the same Department and continued to operate simultaneously. The rationale behind this cannot be fathomed and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued on 09.07.2004 which prescribed the rate of duty at 4% along with rebate. On 17.12.2008, Notification No.29/2004 was amended by Notification No.58/2008-CE, dated 07.12.2008 prescribing 'nil' rate of duty. Notification No.30/2004-CE, dated 09.07.2004 continued to be in force. Simultaneously, Notification No.59/2008-CE was issued prescribing the rate of duty at 4% with rebate. The petitioner had made payment of duty at 4% in terms of Notification No.59/2008-CE, dated 07.12.2008 and claimed consequential rebate. 5. This has been denied by the respondents. The assessing officer was of the view that since, in the period in question, ie., 07.12.2008 to 06.09.2009, Notification No.58/2008-CE, dated 07.12.2008 prescri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used for manufacturing of such products. Thus, when the petitioner is not liable to pay duty in light of the absolute exemption granted under Notification No. 29/2004 as amended by Notification No. 59/2008-C.E., read with the provision of Section 5A(1A) of the Act and when it has not got any other benefit in this case, other than the export promotion benefits granted under the appropriate provision of the Customs Act and Rules (which even otherwise he was entitled to without having made such payment of duty), we are of the firm opinion that all the authorities have committed serious error in denying the rebate claims filed by the petitioner under Section 11B of the Act read with Rule 18 of the Rules. The treatment to the entire issue, acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the second notification 59/2008-C.E., prescribed a concessional rate of duty of 4% on these items, with the benefit of Cenvat Credit. 2. The dispute was with regard to whether an assessee can avail the benefit of either of the above said two notifications whichever is beneficial to him or he is bound to avail the unconditional exemption under notification No. 20/2004-C.E., as amended, during the period under dispute in terms of the provisions of Section 5A(1A) of the Central Excise Act, 1944. 3. The matter was examined in the Board. As a substantial question of law was involved, the matter was referred to the Law Ministry for its opinion. The Ministry of Law has opined that the language used in said S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.58/2008-CE dated 07.12.2008 thereby reducing the rate of duty on cotton yarn and pure cotton fabrics to zero percent from 4 per cent. A query therefore arose with regard to the utilisation of the accumulated credit. The validity of Notification No.59/2008-CE dated 07.12.2008 was also questioned. In reply to the Association's query as to whether the textile mills are still eligible to clear their goods utilising both the Notifications i.e., at zero per cent and 4 per cent simultaneously, the Commissioner of Central Excise, Coimbatore has clarified by way of a Trade Notice on the following lines: 'Due to issue of these notifications, there may be cases where same product / commodity is being cov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification of its choice and the Department cannot thrust a Notification of its choice upon the assessee. 13. I am supported in this view by two judgments of the Supreme Court in the case of H.C.L.Limited vs. Collector of Customs, New Delhi, [2001 (130) E.L.T. 405 (S.C.)] and Collector of Central Excise, Baroda vs. Indian Petro Chemicals [1997 (92) E.L.T. 13 (S.C.)] where the Full Bench and Division Bench of the Supreme Court respectively have categorically confirmed the position that the option to elect and select the benefits provided under Notification is clearly within the realm of choice of an assessee. Circular No. 937/27/2010-CX dated 26.11.2010, thus does not set out the correct position in law. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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