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2018 (8) TMI 892 - HC - Central ExciseCENVAT Credit - two notification available - N/N. 02/2008 dated 01.03.2008 and N/N. 05/2006 - Whether CESTAT was right in concluding that Revenue intends to compel assessee to avail the Notification No.05/2006-CE when the fact is that it was assessee’s decision to avail Notification No.05/2006 - CE? Held that:- No substantial question of law arises in the present case requiring our consideration. It is not disputed before us that the Notification No.02/2008 dated 01.03.2008 was also applicable to the assessee in the present case for the period 07.07.2009 to 26.02.2010 in question. The Show Cause Notice of the assessing authority dated 16.03.2011 and the order (Original) Annexure-‘A’ dated 24.07.2013 clearly admits this position vide aforesaid quoted paragraph Nos.13 and 14 from the Order-in-Original. The assessee has not claimed CENVAT credit during the aforesaid relevant period in violation of condition No.7. It has started to claim the said CENVAT credit only after 01.03.2010, after the anomalous position between the two Notifications No.05/2006 with the condition against availment of CENVAT credit and Notification No.02/2008 without any such condition, was removed by the Central Government on 27.02.2010. Therefore, no malafide can be attributed to the respondent-assessee in claiming such CENVAT credit after removal of the anomaly by the Central Government itself. The claim of CENVAT credit in the eye of law by the assessee in the present case appears to be perfectly in consonance with the Notification No.02/2008 dated 01.03.2008. Merely because the assessee in the said period filed its returns in form No.ER-1 indicating the payment of said 8% excise duty under Notification No.15/2009-C.E. dated 07.07.2009, which amended the original Notification No.05/2006-C.E. dated 01.03.2006 and did not mention anything about Notification No.02/2008 dated 01.03.2008, though the said later Notification also equally applies for the said period, the respondent-assessee cannot be bound down to abide by the condition No.7 of the said Notification No.05/2006-C.E. dated 01.03.2006. Appeal dismissed - decided against Revenue.
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