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2015 (12) TMI 251 - AT - Central ExciseWaiver of pre deposit - period of limitation - relevant date - Availment of CENVAT Credit - SSI exemption under notification no. 8/03-CE - Held that:- As per the provisions of Rule 11(2) of the Cenvat Credit Rules, 2004, when a manufacturer opts for exemption from the whole of duty of excise leviable on the goods manufactured by him, under a notification based on value or quantity of clearances in a financial year and who has been taking cenvat credit on the inputs or input services before such option is exercised, he shall be required to pay an amount equivalent to Cenvat Credit if any, allowed to him in respect of inputs lying in stock or in process or contained in final product lying in stock on the date when such option is exercised and after deducting the such amount from the cenvat credit balance if any, lying in his credit, the cenvat credit balance if any, is still remaining, shall lapse and shall not be allowed to be utilized for payment of duty on any excisable goods whether cleared for home consumption or for export. - appellant do not have prima facie case in their favour. In terms of section 11A(3)(ii) the relevant date in case of excisable goods on which duty of excise has not been levied or paid, short levied or short paid, where under the Rules made under this Act, a periodical return showing particulars of duty paid on excisable goods during period to which the said return relates is to be filed by a manufacturer or producer, the date on which such return is so filed is to be treated as the relevant date. Only in the case where no periodical return has been filed though, it was required to be filed, the last date on which such return is to be filed under the said rules would be treated as relevant date. In this case, though the return for April 2007 to June 2007 quarter was required to be filed on 10.07.2007 but the return was actually filed on 14.08.2007 and, therefore, prima facie, it is 14.08.2007 which would have to be treated as the relevant date. - judgment of Delhi High Court in the case of Super Tyres (P) Ltd. vs UOI (2005 (1) TMI 119 - HIGH COURT OF DELHI) is not applicable to the facts of this case. We are, therefore, of the prima facie view that this is not a case for total waiver - Partial stay granted.
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