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2013 (9) TMI 998 - AT - Central ExciseBenefit of Notification No. 30/2004-C.E., dated 9-7-2004 - Applicability of Rule 6(3) of the Cenvat Credit Rules, 2004 - Held that:- As per the show cause notice, in respect of the demand amounting to ₹ 2,50,81,937/- the cotton fabrics have been exported under bond and, therefore, in terms of Rule 6(6)(v) of Cenvat Credit Rules the demand is unsustainable. As regards the balance amount of ₹ 76,81,014/- wherein the cotton fabrics have been exported under claim for rebate of duty, it is seen that, at the material point of time, there were two rates of duty applicable to cotton fabrics - one a ‘nil’ rate prescribed under Notification No. 29/2004-C.E. as amended and the other ‘4% adv.’ prescribed under Notification No. 59/2008-C.E., dated 7-12-2008. Both these rates were unconditional rates. Therefore, it is not the case that the goods have been completely exempted. When two different Notifications prescribe two rates of duty, the assessee is at liberty to opt for whichever is beneficial to him. It is further on record that the assessee had consulted the department and as per the department’s advice, the assessee had opted for payment of duty @ 4% under claim for rebate in respect of exports in some cases. Therefore, it is not a situation where the duty credit on inputs were availed in respect of exempted goods and dutiable goods simultaneously. Hence the provisions of Rule 6(3) of the Cenvat Credit Rules, 2004 is not applicable in the facts of the case - Decided in favour of assessee.
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