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2017 (9) TMI 14 - AT - Central ExciseSSI exemption - N/N. 9/2003 dated 01/03/2003 - switchover from discharging normal excise duty to small scale exemption - the appellants were discharging Central Excise duty for the year 2004-2005 in terms of N/N. 9/2003 dated 01/03/2003. The said notification was rescinded w.e.f. 01/04/2005. During the financial year 2005-2006, for the period 01/04/2005 to 31/08/2005, the appellants had paid duty on the goods. However, the appellants started availing exemption under N/N. 8/2003-CE from 01/09/2005 to 31/03/2006 and surrendered the Central Excise registration - case of Revenue is that when the appellant continued to pay duty at the normal rate even in the new financial year 2005-2006, they cannot switch over to the SSI exemption in the middle of the year. Held that: - Evidently, the appellants did not opt for availing exemption available to small scale industries in terms of Notification 8/2003. We are not convinced by the argument of the appellant that they have never given in writing their option not to avail exemption under this notification. Clearly, the appellants paid duty at the normal tariff rate for 5 months from 01/04/2005 without opting for SSI exemption under Notification 8/2003. It is clear that they have specifically opted not to avail the exemption during this period. Their plea that they have not filed written option in this regard will not help their case. Their failure to file a written letter cannot add to the benefit of the appellant. Their payment of duty upto 31/08/2005 clearly shows that they have not opted for exemption under the said notification. As such, they cannot switch over to SSI exemption, as per their choice, in the middle of the year. The appellants pleaded for recalculation of duty demand considering the gross receipt as cum duty value. We hold that the same can be done on submission of evidence by the appellants to the effect that they have not indicated in their sales invoice or collected Central Excise duty separately - The eligibility of Cenvat credit on various inputs claimed to have been used during the period for clearance of final products can also be verified by the Jurisdictional Authority - appeal allowed by way of remand.
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