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2016 (3) TMI 393 - AT - Central ExciseEntitlement to exemption - Blue Star Pre Fabricated Building consisting of insulated panels - notifications nos. 17/98 CE dated 18/9/1998 and Notification No. 5/99 CE dated 28/2/1999 - Held that:- Excise duty at the tariff rate i.e. 8% despite the exemption. Notification No. 17/98 CE dated 18/9/1998 and Notification No. 5/99 CE dated 28/2/1999 were available. Prior to insertion of subsection (1A) w.e.f. 13/5/2005 it was not mandatory for a assessee to avail the exemption notification accordingly it was a option available to the assessee either to avail the exemption or to pay the duty as per rate specified in the Central Excise Tariff. Therefore the revenue cannot insist the respondent that they should have compulsorily availed the exemption notifications nos. 17/98 CE dated 18/9/1998 and Notification No. 5/99 CE dated 28/2/1999, for this reason in our view whole proceedings for recovery of an amount of ₹ 5,94,493/- and appropriation thereof was illegal. Demand of an amount u/s 11D - Cenvat / Modvat Credit reversed towards exempted goods shown and claimed in the Invoice - - As regard the demand of ₹ 6,47,313/- paid under Rule 57CC by invoking Section 11D, we find that it is very clear from the invoices that respondent have not recovered the amount of 8% reversed by them under Rule 57CC. This was correctly observed by Ld. Commissioner (Appeals). The revenue also, on the contrary, could not produce any evidence to support their allegation of recovery of the said amount by the respondent, therefore the demand under Section 11D is not correct. - Decided against revenue
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