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2006 (2) TMI 466 - AT - Central ExciseDemand duty- penalty - dyed polyester Yarn falling under SH 5509.22 - denial of the benefit of Notification No. 5/99-C.E - HELD THAT:- In the case of Franco Italian Co. Pvt. Ltd.[2000 (8) TMI 109 - CEGAT, COURT NO. III, NEW DELHI] the Tribunal’s Larger Bench allowed SSI benefit under Notification No. 1/93-C.E. to the assessee in respect of specified goods subject to the condition that the Modvat credit taken on the inputs utilized in the manufacture of such specified goods be reversed. This view was followed, with approval, by the Allahabad High Court in the case of Hello Minerals Water (P) Ltd.[2004 (7) TMI 98 - ALLAHABAD HIGH COURT], the benefit of Notification No. 452/86-C.E. was allowed to the assessee, subject to reversal of credit on inputs. In the instant case also, we are of the considered view that, if the payment by the appellants is found to have compensated the availment and utilization of input duty credit and capital goods credit for the periods 1997-98 & 1998-99, the benefit of Notification No. 5/99-C.E. can be allowed to them in respect of the finished goods cleared during the period of dispute. In such a context, any particular word or expression used in Condition No. 21 of the notification does not arise for interpretation. Thus, following the precedents cited by learned counsel, we set aside the impugned order and allow this appeal. However, it is made clear that it is up to the adjudicating authority to verify the relevant records to satisfy itself that the above payment made on 10-1-2005 by the assessee is adequate to compensate their availment and utilization of input duty credit and capital goods credit for 1997-98 & 1998-99.
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