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2018 (5) TMI 665 - CESTAT CHANDIGARH (LB)SSI exemption - migration from concessional rate of duty with Cenvat Credit to fill exemption - subsequent rescinding of the notification - allowing benefit of Notification No.8/03-CE (as against 9/03) - it was alleged that with the rescinding of Notification No.9/03-CE, concessional rate of duty was not available and they should have paid full rate of duty - contention of the appellant is that they continued to avail notification in question under mistaken belief and inadvertently that the said notification was holding the field during the relevant period. As there are contrary views and difference of opinion between the Members, therefore, the matter be placed before the Hon’ble President to appoint the Third Member for resolve:- Whether in view of Revenue neutral situation, the benefit of Notification No.8/03-CE should be extended to the assessee and the appeal be allowed, as held by the Member (Judicial)? - Difference of opinion - majority order. Held that: - Whatever credit was availed stand utilized by them for payment of 60% of duty. However, if any balance credit is available the same stands reversed by the appellant which leads to a situation where the entire credit so availed by the appellant stand either utilized for payment of 40% tariff rate or stands reversed and is not available with the appellant. It can be concluded that no credit stands availed by them so as to benefit them at any point of time. It will amount to Revenue neutral situation as credit availed by the appellant would become nil and as such the condition of the Notification No.8/03-CE, stands fulfilled by the assessee. Instead of raising differential duty, at full rate of duty, the Revenue should have extended the benefit of Notification No..8/03-CE to the assessee N/N. 9/03-CE dated 1.3.2003 has prescribed effective rate of duty at the rate of 60% of tariff rate. It is settled position of law that if the duty is paid under mistake of law it should be compensated towards recovery of cenvat credit. In view of the said settled position of law, I agree with the view expressed by Member (J). In view of the majority order, the impugned order is set aside and the appeal is allowed with consequential relief.
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