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2018 (5) TMI 379 - AT - Central ExciseBenefit of N/N. 56/2002-CE dated 14.11.2002 as amended - it was alleged that as the appellant paid duty on their own, they were not entitled to claim refund by way self-credit - difference of opinion - majority order. Whether the provisions of Section 5A(1A), which have primacy over notifications, were binding on the appellant and the benefit under Notification No.56/2002-CE dt. 14.11.2002 was not available because of statutory provisions? Whether in terms of Notification No.10/10-CE dt. 17.02.2010, the appellant is not required to pay duty and he has paid duty whether the provisions of Section 11A of Central Excise Act, 1944 are applicable or not? Held that: - it is incorrect to say that what is being paid and what is being refunded does not have the character of duty - Section 11A of the Act will apply. The payment of duty on value added portion is a specific requirement to avail Notification 56/2002-CE. In other words, such payment is clearly for claiming the same back to the appellant. As already stated this is the mechanism evolved for applying the exemption. Having noted that both are exemption notifications issued under exemption 5A, I am in agreement with the findings recorded by Member (Judicial) based on the ratio of various decisions of the Hon'ble Apex court regarding the choice available to the claimant when more than one exemption is available on the same goods - It is settled law that the statutory provisions have primacy over the delegated legislation as has been held by the Hon'ble Supreme Court in the case of Corporation Bank Vs. Saraswati Abharansala [2008 (11) TMI 387 - SUPREME COURT OF INDIA]. The views expressed by Member (Judicial) regarding availability of exemption under Notification 56/2002-CE to the appellant is sustainable - Since, the said issue has been settled in favour of the view expressed by Member (Judicial), the second question is not found relevant, since, the same is with reference to recovery of amount from the appellant on denying the exemption under Notification 56/2002-CE. Appellant is entitled to benefit of Notification No. 56/2002-CE dated 14.11.2002 - appeal allowed.
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