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2017 (6) TMI 675 - AT - Central ExciseCENVAT credit - CVD and additional duty of customs - footwear - packing/repacking and labelling/re-labelling of imported footwear - Whether as per section 5A (1A) of the Act, the appellant is duty bound not to pay duty under N/N. 6/02-CE dated 1.3.2002 and 5/06-CE dated 1.3.2006 and consequently, the appellant is not entitled to avail credit? - Held that: - Bare reading of the said provision indicates that a manufacturer will not have an option to pay duty only where the goods are exempted and the exemption granted is absolute. Admittedly, in this case, the exemption granted N/N. 6/02-CE dated 1.3.2002 and 5/06-CE dated 1.3.2006, is not absolute but conditional - the benefit of notification is optional to the appellant and the appellant is not entitled to avail the benefit of notification, in that circumstance, it cannot be said that the goods are exempted goods. As the goods are not exempted goods, therefore, the appellant has correctly paid duty on the said goods, consequently, the credit cannot be denied to the appellant. Whether in the facts and circumstances of the case, the appellant is liable to pay 10% of the value of exempted goods or not? - Held that: - As there is difference of opinion between the members, therefore, the matter be placed before the Hon’ble President to appoint 3rd Member to resolve the issue.
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