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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 ..... has been decided by the Tribunal in many cases. Tribunal in the case of BOMBAY DYEING MANUFACTURING CO. LTD. VERSUS CCE., MUMBAI-IV [ 2000 (6) TMI 98 - CEGAT, MUMBAI] held that 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. As far as availability of rebate is concerned, the notification providing for rebate talks of duty paid rather than duty payable and as such a manufacturer-exporter has a choice to pay the duty as per the basic rate or after availing the partial exemption and rebate shall be granted on the duty paid . We find that this issue was settled by the Tribunal in the case of AJANTA MANUFACTURING LTD. VERSUS COMMISSIONER OF C. EX. CUS., RAJKOT [ 2009 (4) TMI 655 - CESTAT, AHMEDABAD] which was upheld by the Hon ble Supreme Court in COMMISSIONER VERSUS AJANTA MANUFACTURING LTD. [ 2011 (4) TMI 1394 - SC ORDER] - Tribunal observed that The very fact that no provision has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout availing the exemption available, albeit with some conditions. 2. The brief facts of the case are that the appellants are engaged in the manufacture of kitchen and other household articles; the appellants clear the goods in the domestic market on payment of duty as well as export under rebate in terms of Rule 18 of Central Excise Rules, 2002. The appellants paid the duty at the rate of 10% and claimed the rebate the whole of the duty in terms of Notification No.19/2004-CE (NT) dated 06.09.2004. The Department issued a show-cause notice dated 07.05.2012, to recover alleged excess 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3315- 63316/2018 dated 24.10.2018 (Tri. Chandigarh). SUDARSHAN CONSOLIDATED LTD.- FINAL ORDER NO.60545/2019 dated 04.04.2019. JAMMU PIGMENTS PRIVATE LIMITED- FINA ORDER NO.A/63089/2018 dated 30.08.2018 (Tri. Chandigarh) BHARAT BOX FACTORY LTD.- FINAL ORDER NO. 62192- 62193/2018 dated 20.03.2018 (Tri. Chandigarh) TRIPURA ISPAT AT- 2021(1) TMI 753 (Tripura) 6. Learned Authorized Representative for the Department raises a preliminary objection that the issue involved in the case being the rebate of duty of Central Excise in terms of the proviso to Section 35B. Learned Counsel for 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned Counsel for the appellant, Notification No.19/2004 provides for the payment of rebate of duty paid and not the duty payable . Therefore, we find that there is no reason as to why the contention of the appellants should not be accepted. We find that the issue of availability of choice, of not opting for an exemption notification, to the manufacturer has been decided by the Tribunal in many cases. We find that Tribunal in the case of Bombay Dyeing and Manufacturing Company Ltd. (supra) held that: 13 . Another argument that was advanced was that where an exemption is conditional, an element 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 la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e duty at 8% works out to Rs. 9.85 per unit. He has also submitted that CFLs are sold to distributors and to the best of his knowledge none of the distributors are registered under Central Excise Rules for issuance cenvat invoices. Further he has also enclosed copy of letter of Superintendent Central Excise dated 10-3-2006 advising the company to classify the Energy Saving Lamps under CETH 8539 39 10 instead of 8539 31 10. It has also been stated that exemption to the extent of 8% is available under Notification No. 6/2006-C.E. in respect of goods covered under CE 8539 31 10. The affidavit filed by the Managing 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 fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way of a show-cause notice issued under Section 11A of the Central Excise Act, 1944. We find that the Tribunal in the case of Shreenath Industries- 2018 (364) ELT 904 (Tri. Chd.) held that: 5. We find that in terms of Notification No. 56/2002- C.E., dated 14-11-2002, the assessee is required to pay duty after adjusting the Cenvat credit in cash and whatever duty paid in cash is entitled to selfcredit/ refund to the assessee. The case of the Revenue is that as they have not availed the Cenvat credit and they have paid excess duty against actual duty payable by them. Therefore, the excess credit was taken by the 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 appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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