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2020 (11) TMI 11 - CESTAT CHANDIGARHReversal of Cenvat Credit - Exemption under the under SFIS Scheme - appellant has cleared DG sets without payment of excise duty under the Status Holder Incentive Scheme by availing the benefit of Notification No. 33/2012-CE dated 09.07.2012 and under SFIS by availing the benefit of Notification dated 14.06.2006 - Whether the goods cleared under Notification No. 34/2006-CE dated 14.06.2006 under SFIS Scheme are exempted or not? - HELD THAT:- It is a fact on record that the appellant is manufacturing DG sets and enclosures which are dutiable under Chapter 85 of CETA 1985. The appellant is also clearing goods to the buyers under SFIS Scheme duty free in terms of the Notification No. 34/2006-CE dated 14.06.2006 - It is an admitted position by both sides that the goods in question manufactured by the appellant are dutiable under Chapter 85 of the CETA, 1985. The similar issue came up before this Tribunal in the case of COMMISSIONER OF CENTRAL EXCISE VERSUS KIRLOSKAR CHILLERS PVT. LTD. [2017 (9) TMI 694 - CESTAT MUMBAI], this Tribunal has following the decision in the case of M/S VOLTAMP TRANSFORMERS LTD. VERSUS CCE VADODARA [2011 (9) TMI 648 - CESTAT, AHMEDABAD] hold that the goods supplied under Notification No. 34/2006-CE dated 14.06.2006 is not exempted, therefore, the provisions of Rule 6 (3) (b) of CCR, 2004 are not applicable. These facts are found support from the decision relied upon by the Ld. AR as in the case of UOI AND ORS. VERSUS IND-SWIFT LABORATORIES LTD. [2011 (2) TMI 6 - SUPREME COURT] wherein the Hon’ble Apex Court is clarities that ‘the taxing statute must be interpreted in the light of what is clearly expressed. It is not permissible to import provisions in taxing statute so as to supply any assumed deficiency’. It means that the dutiable goods cannot become exempted goods as per the convenience of the revenue - Moreover, the circular which has been relied by the revenue have no mention of notification in question and the Revenue has presumed that if the notification in question is not part of the Circular No. 973/07/2013-CX dated 04.09.2013 then the provisions of Rule 6 (3) is applicable. The said understanding of the revenue is against the mandate of law as it is based of assumption & presumption. Therefore, it is a clear mis-interpretation of the Revenue by interpreting the CBEC Circular dated 04.09.2013 The goods supplied under Notification No. 34/2006-CE dated 14.06.2006 under SFIS Scheme are dutiable and not exempted goods, therefore, the provisions of Rule 6 (3) of the CCR, 2004 are not applicable to the facts of this case - as provision of Rule 6 (3) of CCR, 2004 are not applicable to the facts of this case, therefore, the demand is not sustainable. Appeal allowed - decided in favor of appellant.
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