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TMI Blog2020 (12) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... NTRAL EXCISE VERSUS M/S FEDERAL MOGUL TPR INDIA LTD. [ 2015 (8) TMI 308 - KARNATAKA HIGH COURT] , of the Coordinate Bench of the Tribunal in M/S INCOPAC PARTS PVT. LTD. VERSUS CCE CGST, JAIPUR [ 2018 (7) TMI 1366 - CESTAT NEW DELHI] and BALKRISHNA PAPER MILLS LTD, LAXMI BOARD AND PAPER MILLS LTD, COMMISSIONER OF CENTRAL EXCISE, THANE-I VERSUS COMMISSIONER OF CENTRAL EXCISE, THANE I AND LAXMI BOARD AND PAPER MILLS LTD [ 2015 (11) TMI 210 - CESTAT MUMBAI] , all involving similar issue, it has been held in the said order dated 28.07.2020 that the finding in the impugned order that availment of cenvat credit by the appellant during the material periods was by contravening the provisions of Rule 6(1) of the said Rules is incorrect and unsustaina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elate to two show cause notices, dated 06.11.2012 and 06.05.2013, covering the periods October 2011 to March 2012 and April 2012 to December 2012 respectively. 2. Dr. Samir Chakraborty, Senior Advocate, along with Mr. Abhijit Biswas, Advocate appeared for the appellant and Mr. D.Haldar, A.R. appeared for the Department. 3. It is contended on behalf of the appellant that the issues involved in the instant appeals are exactly the same as in the appellant's own case, being Excise Appeal Nos.715-716/2012, decided by this Hon'ble Bench of the Tribunal by its Final Order No. 75368-75369/2020 dated July 28, 2020, reported in 2020-TIOL-1209-CESTAT-KOL [M/s Tata Steel Ltd. Vs. Commissioner of Central Excise & Service Tax, Jamshedpur). This order i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was whether Notification No. 65/95-CE is a notification which grants exemption "absolutely" as envisaged under Section 5A(1) of the Act and consequently sub-section (1A) of Section 5A is attracted and therefore the appellant was bound to avail exemption granted by the said notification and the cenvat credit availed was irregular, being impermissible as per Rule 6(1) of the Cenvat Credit Rules. 7.1 Upon analyzing the provisions of Section 5A(1) and (1A) of the Act and Notification No. 65/95-CE dated 16.03.1995 it was concluded in the said order dated 28.07.2020 as under: "7.2 It is seen that Notification No. 65/95-CE grants exemption from duty: (a) if the excisable goods are manufactured in a workshop (b) the workshop is situated with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption granted under Notification No. 65/95-CE was absolute and not conditional in the case of the appellant, is erroneous and not supported from Section 5A of the Act. 7.6 It is settled by decisions of Courts and the Tribunal that in case of a conditional notification, an assessee has the option of either availing or not availing the benefit under the subject notification." 7.2 Thereafter, referring to and relying upon the decisions of the Hon'ble Karnataka High Court in CCE Vs. Federal Mogul TPR India Ltd., 2016 (334) ELT 476 (Kar), of the Coordinate Bench of the Tribunal in Incopac Parts Pvt. Ltd. Vs. Commissioner of Central Excise & CGST, 2018 (362) ELT 904 (T) and Balkrishna Paper Mills Ltd. Vs. CCE, 2015 (329) ELT 468 (T), all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s representing duty of excise on any excisable goods which are wholly exempt or are chargeable to nil rate of duty from any person in any manner, shall forthwith pay the amount so collected to the credit of the Central Government. 8.1 There is no material disclosed in the show cause notice to establish that the requirements laid down in either Section 11D(1) or Section 11D(1A) are satisfied in the instant case. There is no material to evidence that the appellant has collected any amount by way of duty than assessed/determined and paid by it in respect of the subject goods. Further, since Notification No. 65/95-CE is conditional and the appellant has chosen not to avail the exemption thereunder, it cannot also be said that the appellant h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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