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2015 (11) TMI 43 - CESTAT NEW DELHIDuty demand u/s 11D - Denial of Cenvat Credit - activity of repacking from bulk to retail pack of refined edible oil - payment of duty in terms of the notification no. 37/03-CE dated 30.04.2003 - Held that:- Notification gives option of either paying duty of ₹ 1/- per kg. or claiming exemption of nil rate of duty on the goods which are refined edible oils and if they are packed into unit containers. It is also seen that Entry Nos. 244(B) and (C) do not have any condition and are also not mutually exclusive. It is a settled law that when there are two views possible on a Notification, the view which is more beneficial to the assessee has to be applied. In this case, the appellant felt that payment/discharge of duty of ₹ 1/- per kg. on the unit containers of refined edible oil manufactured by them would be more advantageous to him and has chosen to do so. When the Notification itself gives two options, the choice of the appellant to choose an option which is beneficial to him cannot be faulted with. - as it is seen that entry no. 244 (B) & (C) do not have any condition and are also not mutually exclusive. It is settled law that when there are two views possible on notification, the view which is more beneficial to the assessee is to be applied. In this case appellant feels that payment at discharge of duty at ₹ 1 per kg of unit container of refined edible oil manufactured by them would be more advantageous to them and has chosen to pay them. With notification itself give 2 options. Choice of the appellant to chose an option which is more beneficial to them cannot be faulted with. Entry at SI. No. 244 (C) of the notification is not applicable. Therefore, in the light of above cited decisions in the case of Sariba Agro Ltd. (2009 (2) TMI 297 - CESTAT, BANGALORE) we hold that appellant has rightly claimed entry 244 (B) of the notification no. 37/03-CE dated 30.04.2003 and chose to pay duty at the rate of ₹ 1 per Kg. In these circumstances, Cenvat Credit cannot be denaied to the appellant and appellant is availing Cenvat Credit and Paying duty on their final product. Therefore, provisions of section 11D are not applicable to the facts of this case. - Impugned order is set aside - Decided in favour of assessee.
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