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2011 (8) TMI 981 - AT - Central ExciseRebate of duty - Applicability of provisions of Rule 6(3) of the Cenvat Credit Rules 2004 - Notification No 29/2004-CE - Notification No 59/2008 - Different rate of prescribed under both notifications - Simultaneous availment of both notification - Held that:- As per the show cause notice, in respect of the demand amounting to Rs.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 Rs.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-CE as amended and the other '4% adv.' prescribed under Notification No 59/2008 dated 07/12/2008 Both these rates were unconditional rates. Therefore, it is not the case that the goods have been completely exempted. When two different Notifications prescribed 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 do not appear to be applicable in the facts of the case - Stay granted.
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