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2002 (12) TMI 80 - SC - Central ExciseWhether Section 11A was applicable? Held that:- Lesser collection of duty because the adjustment of duty paid on inputs is not a case of short-levy as contended by learned Counsel for assessee. The notification in question was issued under sub-rule (1) of Rule 8. Said Rule, omitted vide Notification No. 19/88-C.E., dated 1-7-1988 dealt with power to authorize exemption from duty in special cases. If exemption is granted under Rule 8(1), goods do not cease to be excisable goods and levy of duty is not erased. Emphasis was on the duty of excise leviable on the manufactured item and duty of excise paid on the inputs available for adjustment. Therefore, Section 11A had no application to such a situation. To that extent the Tribunal was not justified in its conclusions; but that is not the end of the controversy. It appears that the assessee had specifically questioned applicability of the notification after same was rescinded. Tribunal has not recorded any finding in this regard. The effect of Section 38A, which was introduced with retrospective effect, is also to be considered. We, therefore, deem it proper to remand the matter back to the Tribunal for consideration of these aspects. If the Tribunal holds that after the notification was rescinded w.e.f. 1-3-1986; Paragraph 3 of the Appendix became inoperative, then the position would be different. While considering that aspect the effect of Section 38A has to be kept in view. In case the Tribunal comes to the conclusion that Paragraph 3 of the Appendix was applicable because of Section 38(A)(C), it has to consider the further stand of the assessee about adjustment in the credit account maintained under Paragraph 5 of the Appendix.
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