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2022 (5) TMI 1243 - AT - Central ExcisePayment of duty availing the benefit of Concessional rate of duty instead of full exemption - Reversal of Cenvat Credit - payment of Central Excise duty on the final product by the appellant during the disputed period was objected to by the Department on the ground that the appellant should have self-assessed at ‘NIL” rate of duty under Sl. No.90 of notification dated 01.03.2006, as amended - HELD THAT:- Section 5A of the Central Excise Act, 1944 recognizes two categorizes of exemption notification. The first category being that of an “absolute” exemption, where there was no condition attached to the exemption entry and the other one is a “conditional” exemption, which was subject to fulfilment of the conditions attached to the exemption entry - In the present case, the exemption entry at Sl. No.90 of Notification No. 4/2006-Central Excise was attached with two conditions for availing of the benefit of duty exemption and therefore, it was a conditional exemption and not an absolute exemption, as contemplated by Section 5A(1A) ibid. Since, the appellant had opted for payment of duty on clearance of the finished products and availed cenvat credit of Central Excise duty, such option exercised by the appellant cannot be questioned by the department inasmuch as there was no stipulation contained in the subject notification that only condition No. 90 appended thereto had to be followed and not otherwise. The appellant had correctly assessed the duty liability as provided under Sl. No. 93 contained in notification dated 01.03.1998, as amended. Thus, there was no contravention of the Cenvat statute in availment and utilization of the Cenvat credit. Further, it is not the case of Revenue that the duty amount collected by the appellant was not deposited with the Government Exchequer. Hence, under such circumstances, the provisions of Section 11D ibid cannot be invoked for recovery of the duty amount in question. Appeal allowed - decided in favor of appellant.
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