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TMI Blog2023 (9) TMI 452X X X X Extracts X X X X X X X X Extracts X X X X ..... ss grant of rebate, claiming that in terms of Notification No.02/2011-CE dated 01.03.2011, Excise Duty in excess of 5% was exempted whereas the appellants paid duty at the rate of 10%; the show-cause notice also proposed to recover excess CENVAT credit refund of Rs.24,635/-. Revenue issued subsequent show-cause notices to restrict the grant of rebate. The adjudicating authority upheld the show-cause notice so far as rebate is concerned but allowed the grant of refund of CENVAT credit. 3. Ms. Krati Singh, assisted by Shri Aman Singh, learned Counsel appearing on behalf of the appellant submits that in terms of the Notification, rebate shall be granted on whole of the duty paid; relying on Tribunal's judgment in the case of Ajanta Manufacturing Ltd. Vs Commissioner- 2009 (246) ELT 612 (Tri. Ahmd.) affirmed by the Hon'ble Supreme Court 2016 (333) ELT A231 (SC), she submits that there is no provision which prohibits the manufacturer from paying duty at a higher rate in case of unconditional partial exemption. She also relies on the following cases: * Gayatri Laboratories Pvt. Ltd.- 2006 (194) ELT 73 (Tri.) * Bharat Chemicals- 2015 (320) ELT 337 (Bom.). * Jayant Oil Mills- 2009 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the appellant submits, at this juncture, that in terms of Section 35B(b) read with the provisoof Central Excise Act, 1944, an appeal against an order passed by Commissioner (Appeals), in respect of rebate, does not lie with the Tribunal; however, the impugned order being passed by Commissioner of Central Excise, the appeals lie with this Tribunal. Learned Counsel for the appellants submits that Tribunal has gone into the issue and several judgments have been passed concerning the rebate on goods. Thereafter, learned Authorized Representative for the Department submits that the appellants are required to discharge the duty liability as per the effective rate specified in the notification; Hon'ble High Court has upheld this opinion in the case of Nahar Enterprises Ltd. - 2009 (235) ELT 22 (P&H); the same was affirmed by the Hon'ble Supreme CourtE/ 57857/2013 5 2022 (380) ELT 129 (SC). Learned Authorized Representative further submits that the adjudicating authority has correctly relied on Government of India decision in the case of Raj Industries Limited- 2012 (278) ELT 421 (GOI). 7. Heard both sides and perused the records of the case. We find that Notification No. 02/2011 dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lement of option is always present, in that the assessee may not be able to fulfil the conditions contained in the notification or may perceive, at the time of clearance of its goods its inability to fulfil the condition, even though that perception may late be belated. Where an assessee is clearly unable to comply with the conditions of the notification, it is evident that that notification cannot be forced upon him. The same position would hold true, in case of an assessee who avail although wrongly that he may not be able to fulfil the conditions of the notification. It is settled law that an exemption has to be claimed and that the burden of proving that he falls within the exemption falls upon the person who claims it. In such cases therefore we must independently of our earlier reasoning come to the conclusion that there is always an element of choice in availing of an exemption notification." 9. We also find that the Hon'ble Gujarat High Court in the case of Jayant Oil Mills (supra) held that: "9. It cannot be disputed that levy of duty is prescribed by provisions of the Central Excise Act, 1944 and the rate of duty is prescribed by the Tariff Act. Therefore, once the dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aging Director clearly shows that the duty at higher rate was paid because of advice given by the department and the same department has subsequently chosen to reject the refund claims filed by the appellant in respect of payment of duty from PLA. It also cannot be said that this has been done to encash cenvat credit since Cenvat credit availed is less than even 8% duty liable. Further, we also find considerable force in the arguments advanced by the Ld. Advocate that appellant is entitled to refund equivalent to the amount paid in cash after utilization of the Cenvat credit in full. Even otherwise appellant cannot be prevented from paying duty at 16% instead of 8% in view of the provisions of Section 5A. Section 5A was amended after the Tribunal had rendered several decisions to the effect that manufacturer can chose to pay duty even when the goods are fully exempted unconditionally. The very fact that no provision has been made in Section 5A while amending the same to prohibit manufacturer from paying duty in case of unconditional partial exemption at higher rate, the appellant cannot be found fault with for having paid higher rate of duty. Further it is to be observed that havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant is not entitled for refund. 6. We take further note of the fact that the appellant has taken self credit, if only of duty paid in cash and Notification No. 56/2002-C.E., dated 14-11-2002, states that wherein whatever duty has been paid in cash is refundable. Admittedly, the appellant has not claimed refund of Cenvat credit available to them. In that circumstances, it is revenue neutral situation, therefore, there was no requirement to issue show cause notice to the appellant. We further taken note of the fact that the demand has been raised against the appellant under Section 11A of the Central Excise Act, 1944. As per the said provision, if the appellant has not paid duty/short paid duty/erroneously refunded of duty is recoverable. In this case, it is the case of the Revenue itself that they were not required to pay duty, therefore, the excess amount paid by the appellant is merely a deposit not a duty. Hence, the provisions of Section 11A of the Act, is not applicable to the case. In that circumstances, the appellant is not required to pay the excess refund claimed by them. 14. We find that this Bench vide Final Order No.60545/2019 dated 04.04.2019 and Final Order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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