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2015 (4) TMI 852 - CESTAT NEW DELHIArea based exemption in Jammu and Kashmir - application for fixation of special rate of value addition - alue addition of 36% specified in the exemption notification - Benefit of Notification No. 56/02-CE as amended by Notifications No. 19/08-CE dated 27/3/08 and 34/08-CE dated 10/6/08 - Held that:- Jammu & Kashmir High Court in its judgment in the case of M/s Reckitt Benckiser [2010 (12) TMI 237 - JAMMU AND KASHMIR HIGH COURT] has quashed the amendments to the Notification No. 56/02-CE by Notification No. 19/08-CE dated 27/3/08 and 34/08-CE dated 10/6/08 and the effect of the judgment would be that the provisions restricting the benefit introduced in the Notification No. 56/02-CE by these notifications are no longer there. Therefore, in our view, this judgment of Hon ble Jammu & Kashmir High Court would be applicable to those assessees also who had opted for this exemption even after the amendment to the Notification No. 56/02-CE by Notification No. 19/08-CE dated 27/3/08 and 34/08-CE dated 10/6/08. Thus those assessees who have set up their units in the areas specified under Notification No. 56/02-CE on or after 06/2/10, have option either to avail Notification No. 56/02-CE or avail the Notification No. 1/2010-CE dated 06/2/10 and in case they opt for Notification No. 56/02-CE, the benefit available to them would not be restricted by Notification No. 19/08-CE dated 27/3/08 and 34/08-CE dated 10/6/08. If the appellant, however, opt for the Notification No. 1/2010-CE, the question of determination of special rate of value addition by the Commissioner would come. This rate has to be calculated on the basis of the formula prescribed in the Explanation to para 5 of the notification. In this regard, we do not find any mistake in para 17 of the order-in-original dated 31/5/12 passed by the Commissioner as the value addition has been determined as the difference between the sale value excluding excise, sales tax and other indirect taxes during 2011-12 (Rs. 1,05,11,690/-) and cost of raw material and packing material consumed (Rs. 32,30,184/-) - appellant s plea that the cost of raw material and packing material consumed is nil is not correct and the Commissioner has correctly determined the value addition for 2012-13 as 69.27%. If for 2013-14 the appellant opt for Notification 1/2010-CE and also opt for special rate of value addition, the same must be determined in terms of the above formula. - Matter remanded back - Decided in favour of assessee.
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