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Showing 341 to 360 of 1244 Records
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2013 (7) TMI 905
Issues involved: Reduction of penalty by the tribunal without providing reasons and discussion of relevant facts.
The respondent, an assessee, faced a demand of &8377; 9,78,957/- for incorrectly claiming service tax paid on traded goods not used in manufacturing, along with a penalty under Rule 25 of Central Excise Rules, 2002 and Rule 15 of the Cenvat Credit Rules, 2002 read with Section 11AC of the Central Excise Act, 1944. Interest under Section 11AB of the Central Excise Act, 1944 was also directed to be paid. The respondent's appeal was unsuccessful, leading to a second appeal before the Custom Excise and Service Tax Appellate Tribunal.
The tribunal's order dated 24th July, 2011, reduced the penalty to 25% of the duty to be paid within 30 days of receipt of the order, citing the submission that if any duty demand was to be upheld for goods sent for use in earthquake victims' rehabilitation, a harsh penalty should not be imposed. The order did not provide reasons, discuss contentions, issues, or relevant facts, leading the High Court to hold it as not in accordance with the law and lacking natural justice principles.
The High Court framed the substantial question of law regarding the tribunal's order being perverse due to the absence of discussion on relevant facts and reasons for the penalty reduction. With the consent of both parties, the appeal was taken up for hearing and disposal. The court ruled in favor of the appellant, directing the tribunal to hear the appeal again and pass a fresh order with proper reasons. The parties were instructed to appear before the tribunal on a specified date for further proceedings.
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2013 (7) TMI 904
Demand of Special Duty - Tribunal vide impugned order reported in 2001 (2) TMI 246 - CEGAT, MUMBAI, held that order not demanding special Customs duty at appropriate rate under Section 68 of Finance Act, 1996 as well as not imposing Mandatory penalty equivalent to duty evaded, was legally correct - Aggrieved by such order of Tribunal, revenue filed appeal before Supreme Court which was dismissed on ground of delay.
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2013 (7) TMI 903
Issues involved: Whether clearance from Committee on Disputes (COD) is required for filing an appeal, and the impact of the Apex Court's decision on the same.
In the judgment, the Civil Miscellaneous Appeal was filed by the assessee against the order of the Customs, Excise & Service Tax Appellate Tribunal, Chennai Branch, questioning the requirement of clearance from COD for the appeal. The substantial question of law raised was whether the impugned order dismissing the appeal for lack of COD clearance was correct, especially considering the absence of such a mechanism and the Hon'ble Supreme Court's referral of the issue for reconsideration by a larger Bench.
The assessee, a State Government Public Sector Undertaking, had their appeal rejected by the Tribunal due to non-obtaining of COD clearance. The Apex Court, in a previous decision involving Electronics Corporation of India Limited v. Union of India, highlighted the significant delays in obtaining COD clearance and the unnecessary burden it placed on parties involved in cases with high stakes. Consequently, the Apex Court rescinded its previous directions, making it no longer mandatory for PSUs to seek clearance from the High Powered Committee before initiating legal proceedings.
In light of the Apex Court's decision mentioned above, the Tribunal's order was deemed invalid, and therefore set aside. The Tribunal was instructed to proceed with the appeal, evaluate it on its merits, and issue orders in accordance with the law.
As a result, the Civil Miscellaneous Appeal was allowed with no costs, and the connected CMP was closed.
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2013 (7) TMI 902
Issues:
Interpretation of Schedule I and Schedule II of the Madhya Pradesh Vanijyik Kar Adhiniyam, 1994 regarding the taxation of "dried singhada" and "green singhada".
Analysis:
The case involved a controversy regarding the liability of "dried singhada" for commercial tax under the Madhya Pradesh Commercial Tax Act, while "green singhada" was exempted. The petitioner argued that "singhada" was listed in both Schedule I and Schedule II, with the Commissioner defining "singhada" in Schedule II as "dried singhada" used for making flour. Referring to a previous Division Bench decision, the court analyzed Section 15 of the Act concerning tax-free goods and the power of the State Government to amend schedules. The court highlighted that the State Government could not exclude items listed in Schedule I as tax-free goods but could only include further goods or relax conditions. The court cited a case precedent to emphasize that the scope of Schedule I, being a creation of the Legislature, could not be curtailed by the State Government through notifications. The court concluded that the notification excluding "dried singhada" exceeded statutory limits as the Legislature's intention was to include both fresh and dried "singhada" unless specifically excluded, as seen in the case of dried ginger.
The court further discussed the limitations on the State Government's power to amend Schedule I and the significance of legislative intent in interpreting tax exemptions. The court emphasized that Schedule I was part of the original statute created by the Legislature, and any attempts to curtail its scope through notifications were impermissible. The court held that as long as Section 15(2) remained in force and Schedule I was a creation of the Legislature, its effect could not be nullified by notifications. Therefore, the court concurred with the view taken by the learned single judge and dismissed the appeals, in line with the decision in the previous case. The petition was allowed based on the Division Bench's order in the earlier case, and the matter was finally disposed of with no order as to costs.
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2013 (7) TMI 901
Issues involved:
The issue involves the imposition of penalty under section 22A(7) of the Rajasthan Sales Tax Act, 1994 based on incomplete declaration form No. ST 18-A during a stock transfer of goods intercepted on August 8, 1995.
Details of the Judgment:
The assessing officer (A. O.) intercepted a vehicle on August 8, 1995, and found an incomplete declaration form No. ST 18-A during a stock transfer. The A. O. imposed a penalty under section 22A(7) of the Act. The respondent appealed, and the Deputy Commissioner (Appeals) allowed the appeal, deleting the penalty. The petitioner-Department then appealed to the Tax Board, which affirmed the decision of the DC (A) and dismissed the appeal.
The petitioner-Department argued that the penalty was justified due to the incomplete declaration form No. 18-A. However, the court found that carrying declaration form ST-18-A was not mandatory for stock transfers before March 20, 2000, as per a relevant notification. The court referred to a previous case where a similar issue was settled, concluding that no substantial questions of law arose in the present case.
Therefore, the court dismissed the sales tax revision petition based on the precedent and the application of the notification exempting the requirement of carrying declaration forms for stock transfers before March 20, 2000.
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2013 (7) TMI 900
six months is a period prescribed for filing a revised return, nine months is a prescribed for filing an audited statement of accounts. Only when a Chartered Accountant audits the account and points out the error, one could file a revised returns. Therefore, the revised return has to be necessarily beyond six months and beyond 9 months.
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2013 (7) TMI 899
Issues Involved: Condonation of Delay in Filing Appeal, Allegations of Manufacturing Activities
Condonation of Delay in Filing Appeal:
The appellant sought condonation of delay in filing the appeal, citing non-receipt of the order-in-original from the Tribunal. The Tribunal informed that the order was dispatched via speed post to the given address. The court accepted the appellant's claim of not receiving the order initially, leading to the delay. Upon becoming aware of the order, the appellant obtained a certified copy and filed the appeal, resulting in the condonation of the delay.
Allegations of Manufacturing Activities:
The appellant was accused of supplying caps and bags to specific companies, which was acknowledged. However, during a survey, no machinery or raw material was found on the premises. The appellant's subsequent actions, including not producing original books of account, delayed the Revenue's inquiry. An FIR was filed post-inspection, and full details of suppliers were not provided. The appellant failed to produce supply contracts and addresses of suppliers, only vaguely mentioning Mrs. Khan's involvement. Despite supplying significant goods to the companies, detailed supplier information was lacking, indicating a concealment of facts within the appellant's knowledge. The Tribunal's findings were deemed plausible, and the appeal was ultimately dismissed.
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2013 (7) TMI 898
Issues involved:
The issues involved in the judgment are:
1. Whether the Tribunal can go into the merits of the case in detail while deciding applications for dispensation of pre-deposit.
2. Whether the Tribunal has judiciously exercised its discretion in concluding that no prima facie case has been made out and that the case requires further detailed consideration.
Issue 1:
The appellant contended that a strong prima facie case was made out regarding the classification of vehicles under the Central Excise Tariff, which led to a differential duty compared to a competitor. The Tribunal did not consider this discrimination issue, which was deemed a strong prima facie case by the High Court. The High Court disagreed with the Tribunal's conclusion and found that the case warranted further detailed consideration, indicating the existence of a prima facie case. The High Court reduced the pre-deposit amount from Rs. 20.00 crores to Rs. 10.00 crores, emphasizing that a strong prima facie case existed, and no extreme hardship was shown to warrant full dispensation. The appellant was given liberty to apply for an expeditious hearing upon making the reduced deposit within four weeks.
Issue 2:
The High Court observed that when the Tribunal determined that the case required further detailed consideration and analysis of statutory provisions, it implied the existence of a prima facie case. The High Court found the Tribunal's exercise of discretion to be not judicious in this case, especially considering the strong prima facie case presented. It was held that a strong prima facie case constitutes hardship, thus justifying a reduction in the pre-deposit amount. The High Court modified the Tribunal's judgment to reduce the pre-deposit to Rs. 10.00 crores and allowed the appellant to seek an expedited hearing upon making the reduced deposit within four weeks.
This summary provides a detailed breakdown of the judgment, addressing each issue involved and highlighting the key points and decisions made by the High Court.
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2013 (7) TMI 897
Issues involved: Petition for refund of pre-deposit amount u/s Article 226 of the Constitution of India.
Summary:
The petitioner filed a petition seeking the refund of an amount of &8377; 2,20,00,000/- which was deposited as a pre-deposit while appealing before the Tribunal. The petitioner claimed entitlement to the refund as the decision in the appeal was in their favor. However, it was noted that the Revenue had preferred a Tax Appeal against the decision of the Tribunal, which was admitted. The Court ordered a stay on the impugned judgment and clarified that the Department was not required to return the pre-deposit amount at that stage to prevent further coercive steps for recovery. The Court mentioned that the petitioner could request a return of the pre-deposit amount if the Tax Appeal was dismissed and the Tribunal's order was confirmed. Therefore, the prayer for the return of the amount at the present stage was not granted, leaving the option open for a consequential order in the future if needed.
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2013 (7) TMI 896
Issues involved: Assessment of turnover, stock variation, estimation of first sales, penalty under section 12(3)(b).
Assessment of turnover: The High Court of Madras heard a tax case revision for the assessment year 1996-97. The Revenue challenged the Tribunal's order regarding the estimation of turnover amounting to Rs. 14,83,003 despite stock variation found during inspection at the assessee's business premises. The assessing officer estimated a stock difference of Rs. 99,081 and imposed a penalty under section 12(3)(b) at 150 percent.
Stock variation and estimation of first sales: During an inspection in August 1996, officers found discrepancies in the stock of goods purchased from outside the State, indicating first sales suppression. The assessing officer computed gross profit at 12 percent for the stock difference and made additional estimations, resulting in a total suppression amount of Rs. 1,98,162. The Appellate Assistant Commissioner upheld the assessment, but the Sales Tax Appellate Tribunal overturned the decision for the assessment year 1996-97 based on the explanation provided by the assessee regarding varying gross profit in second sales.
Penalty under section 12(3)(b): The assessing officer imposed a penalty under section 12(3)(b) at 150 percent, which was a subject of dispute in the appeal process. The Tribunal, after considering the reasons given by the assessee for the varying gross profit in second sales and the absence of specific allegations of misclassification of goods, deleted the addition of Rs. 14,83,003 and the penalty levied.
Conclusion: The High Court upheld the Tribunal's decision, stating that the varying gross profit in second sales was adequately explained by the assessee, and there was no evidence of misclassification of goods in the accounts. Therefore, the Court dismissed the tax case revision, emphasizing that the Tribunal's order did not warrant interference.
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2013 (7) TMI 895
Issues Involved:
1. Interpretation of the Tamil Nadu General Sales Tax Act regarding the transfer of property in works contract of dyeing.
2. Assessment of the processes of dyeing and printing of cloth under the said Act.
3. Determination of whether the transfer of property in goods in works contracts is significant enough to attract the provisions of the Act.
On the first issue, the Tribunal held that without proof of transfer of property in the execution of works contract, a 50% exemption on total turnover should be given for labour and other charges, with only 50% of turnover assessed as costs of dyes as consumables. This decision led to a reduction in penalty.
Regarding the second issue, both parties acknowledged that a previous court decision (T. C. No. 78 of 2011) had addressed a similar matter. In that case, it was established that the purchase of dyes and chemicals outside the State for works contracts constituted a "sale" and fell under section 3B of the Act, based on the precedent set by the Rainbow Colour Lab v. State of Madhya Pradesh case. Consequently, the court allowed the tax case revision and overturned the decision of the Sales Tax Appellate Tribunal.
In conclusion, the court set aside the order of the Sales Tax Appellate Tribunal based on the precedent established in a previous case. As a result, the tax case revision was allowed without any costs incurred.
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2013 (7) TMI 894
Issues involved:
The judgment deals with the levy of additional sales tax for the assessment year 1996-97. The key questions of law raised include:
1. Whether additional sales tax can be levied if the taxable turnover is less than 100 crores.
2. Applicability of section 2(1)(aa) of the Additional Sales Tax Act, 1970 in cases where the taxable turnover is less than 100 crores.
3. The possibility of levying additional sales tax for the period from April 1, 1996, to July 31, 1996 under the Additional Sales Tax Act, 1970.
Summary:
The Revenue filed a revision against the Sales Tax Appellate Tribunal's order for the assessment year 1996-97. The issue of levy of additional sales tax in this case is settled by the decision in the State of Tamil Nadu v. National Time Co. The court held that the taxable turnover up to the date of amendment must be assessed with reference to the relevant tax rate applicable to that period. Consequently, the matter is remanded back to the assessing officer to determine the liability based on this principle. The taxable turnover for the entire year should be considered, with the turnover up to July 31, 1996, attracting liability at specified rates, and turnover beyond that date subject to amended provisions for turnovers exceeding 100 crores for the whole year.
The tax case revision is disposed of accordingly, with no costs incurred.
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2013 (7) TMI 893
Issues:
1. Validity of ex parte assessment order under the Madhya Pradesh Vilasita, Manoranjan, Amod Evam Vigyapan Kar Adhiniyam, 2011.
2. Compliance with notice requirements under Rule 31 of the Madhya Pradesh VAT Rules, 2006.
3. Allegation of incorrect assessment due to lack of opportunity to explain factual position.
4. Dismissal of appeal due to non-deposit of statutory amount.
Analysis:
Issue 1: Validity of ex parte assessment order
The petitioner challenged the ex parte assessment order, arguing that the order was framed without proper jurisdiction as it was done within 30 days from the date of service of notice. The petitioner contended that the assessment order should be set aside, and the matter should be remitted back to the assessing officer for a fresh order after providing an opportunity for a hearing. The State opposed this, stating that the petitioner had failed to appear before the assessing officer despite multiple notices. The Court found that the notices were served before the hearing dates, but it noted a lack of compliance with the 30-day notice requirement as per Rule 31 of the Madhya Pradesh VAT Rules.
Issue 2: Compliance with notice requirements
Rule 31 of the Madhya Pradesh VAT Rules mandates that the notice for assessment should be served not less than 30 days from the date of service. The Court observed that while earlier notices were issued and served, the transmission of the case to a different authority caused a delay in the notices reaching the petitioner. The Court highlighted that the authority failed to issue notices within the stipulated 30-day period, emphasizing the importance of providing adequate time for compliance with assessment procedures.
Issue 3: Allegation of incorrect assessment
The petitioner argued that the assessment was based on information collected through internet sources without giving them an opportunity to explain the factual position. The Court agreed that the petitioner should have been informed about the basis of assessment derived from internet sources and granted an opportunity to present their case properly. The Court emphasized the necessity of allowing the petitioner to provide clarifications before finalizing the assessment order.
Issue 4: Dismissal of appeal
The petitioner's appeal was dismissed due to non-deposit of the statutory amount required for the appeal process. The Court noted the petitioner's difficulty in obtaining the necessary sanction for deposit and acknowledged the dismissal of the appeal. However, the Court directed the petitioner to appear before the assessing officer, submit contentions, and allowed for a fresh assessment order to be framed in accordance with the law.
In conclusion, the Court remitted the case to the Assistant Commissioner, Commercial Tax, for a fresh assessment order, emphasizing the importance of providing the petitioner with an opportunity to be heard and clarifying that the Court had not expressed any opinion on the merits of the case.
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2013 (7) TMI 892
Issues:
Claim rejection under Sales Tax Incentive Scheme,1998.
Analysis:
The petitioner, engaged in manufacturing woollen yarn, leased land for 15 years, but the Committee rejected the application citing non-compliance with Scheme conditions. The petitioner argued that rented premises should be eligible based on court precedents. The respondent's counsel contended that the rejection was justified, being a factual matter. The judge found the rejection valid as the land was industrial, application was delayed, and no permission was obtained for land conversion. The Tax Board upheld the rejection based on non-compliance with Scheme terms. The judge distinguished cited cases, emphasizing the necessity of prior permission for land use. The judge concluded that the rejection was lawful, based on factual assessment, and no legal question arose, dismissing the revision petition without costs.
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2013 (7) TMI 891
Classification of goods - classificaion under CTH 7606 12 00 or under heading 7616 - Held that:- Commissioner (Appeals) in his finding agreed that the imported goods may be called as profile. However, while relying upon the HSN to chapter 7214 by virtue of which the pieces cut from bars-rods with length not exceeding the greatest cross-sectional dimension are excluded from 7214 and are covered by 7326. In this refund we find that in case of aluminium bars, rods and profile under 7604 such exclusion is not provided - The department failed to show vide which provision of the HSN explanatory notes to chapter 7214 has been made applicable to chapter 7604 - department failed to show how the impugned goods are other articles of aluminium. Further there is no sub-heading for parts under Ch. Heading 7616 and it is also not the case that the impugned goods are part of machine falling under Chapter 84 or 85. In these circumstances the goods are not classifiable under Ch. Heading 7616 and are rightly classifiable under Ch. Heading 7604. Therefore, the impugned OIA is not sustainable in law and the same is set aside - Decided in favour of assessee.
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2013 (7) TMI 890
Review petitionLevy of customs duty on the import of furnace oil - also the penalty u/s 112 - assessee contested aginst demand of the duty along with the penalty being barred by limitation - Held that:- Since the Special Leave Petition, against the impugned order [2014 (10) TMI 185 - CHHATTISGARH HIGH COURT] has already been dismissed by the Supreme Court [2013 (1) TMI 616 - SUPREME COURT], we see no justification to entertain this review petition. - Decided against assessee.
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2013 (7) TMI 889
Condonation of delay - 13 days in filing an application for reference before the tribunal to Appeal before Supreme Court - Held that:- The period of 60 days prescribed for filing the application for reference expired on 7-6-1996. The application for reference was presented on 20-6-1996 with a delay of 13 days. The fact that the delay is within the condonable limits is not in dispute.
Under the proviso to Section 130(1) of the Act as it then stood, as the order of the CEGAT was one passed before 1-7-1999 and it was not an order which relates to the duty of excise or to the value of goods for the purpose of assessment, the department had the right to file an application for reference under Section 130(1) of the Act. Therefore the mere fact that initially the papers were sent to the Central Board of Excise and Customs for the purpose of filing an appeal to the Supreme Court under Section 130E of the Act is not a reason to hold that after such a decision was taken, even if it be a wrong decision, the party aggrieved does not have the option of resorting to the right remedy available to him, namely, the filing of an application for reference, which alone was the remedy available in the instant case. In such circumstances, merely for the reason that before the period of 60 days expired, a wrong decision was taken to move the Apex Court by filing an appeal and within 60 days, a right decision was taken by the Central Board of Excise and Customs to file an application for reference before the CEGAT and within 13 days thereafter such a step was taken, it cannot be said that the petitioner did not act with due diligence.
Order passed by the CEGAT declining to condone the delay of 13 days in filing the application for reference and consequently dismissing the application for reference requires to be set aside and the delay in filing the reference application condoned.
Territorial jurisdiction to entertain this original petition. - Held that:- In the instant case it is not in dispute that the goods were imported through Cochin Port. The original order of adjudication was made at Cochin. It was that order which gave rise to the appeal as well as the application for reference before the CEGAT. In such circumstances I find no merit or substance in the contention raised by the respondent that the cause of action for the instant original petition is only the dismissal of the application to condone the delay in filing the application for reference and therefore, no part of the cause of action arose within the local limits of the territorial jurisdiction of this Court. Dehors the import and the order of adjudication, the reference application could not have been made. It was that import and the order of adjudication which gave rise to the reference application. In any case, it cannot be said that no part of the cause of action arose within the local limits of the territorial jurisdiction of this Court.
Customs, Excise and Gold (Control) Appellate Tribunal, South Zonal Bench at Madras (CESSTAT) directed to dispose of the reference application on the merits. - Decided in favor of revenue.
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2013 (7) TMI 888
Waiver of pre deposit - Misdeclaration of goods - Held that:- no error in the discretion exercised by the Tribunal. The appellant has been fasted with a liability of ₹ 50 lacs but the Tribunal has in the exercise of its discretion reduced the amount to be deposited as pre-deposit to ₹ 10 lacs. In the absence of any error of jurisdiction or of law, we find reason to interfere - Decided in favour of assessee.
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2013 (7) TMI 887
Whether the appellants can be said to have not used the foreign exchange for the purpose for which it was given to them though they admittedly paid it to the aforesaid Switzerland company and therefore not liable for any penalty - Held that:- it is sub-section (3) of Section 8 which mandates that when a person other than an authorized dealer or a money changer acquires foreign exchange for any particular purpose, then he has to use it only for that purpose and if he fails to use it, he has to inform the authorities concerned. Then sub-section (4) further clarifies what is meant by “not using a foreign exchange” when it is obtained by a person for importing goods and it says that even if he fails to import the goods, he will be held to have violated sub-section (3). The burden is imposed upon him to explain to prove the contrary and what is the significance of the expression “to prove the contrary” will be dealt with a little later.
The appellants should have entered into contract with the Switzerland company after making every arrangement with the concerned bank and making it doubly sure that they get the loan and when the bank fails, they cannot be expected to be heard to say that the bank was at fault and plead for exoneration. The learned counsel for the appellants did not cite any authority to show that mens rea is necessary to apply sub-sections (3) and (4) of Section 8 read with Section 50 of the Act and the appellants cannot be proceeded against in a situation like this. - impugned order of the appellate tribunal cannot, in principle, be disturbed though as will be presently seen there is, in my opinion, ground to reduce the penalty.
Section 50 says that it cannot exceed five times the foreign exchange involved. It is now well settled that Section 50 provides an outer limit for the penalty prescribed which is not mandatory. Even the Deputy Director and the appellate tribunal did not impose the maximum penalty. In other words, it follows that the authorities under the Act and this court have also the power to impose a lesser penalty. - Decided partly in favour of assessee.
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2013 (7) TMI 886
Denial of rebate claim - goods exported were wholly exempted from payment of Central Excise duty vide Notification No. 30/2004-C.E., dated 9-7-2004 - Held that:- applicant availed exemption from payment of duty under Notification No. 30/2004-C.E. (N.T.), for domestic clearances whereas on export clearance duty was paid in terms of Notification No. 29/2004-C.E. (N.T.). - exemption granted absolutely from whole of duty of excise has to be availed and in that case there is no option to pay duty. In this case goods are not exempted unconditionally. The Notification No. 30/2004-C.E. (N.T.) is a conditional one since said exemption is available only if Cenvat credit is not availed. So, the applicant was not under any statutory compulsion to avail said notification. As such there was no bar on the applicant to pay duty under Notification No. 29/2004-C.E. (N.T.) since as per C.B.E. & C. Circular No. 845/03/06-CX (F. No. 267/01/06-CX.8), dated 1-2-2007 and 795/28/2004-CX, dated 28-7-2004, both the Notifications can be availed simultaneously. - rebate claim is admissible to the claimant under Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 - Decided in favour of assessee.
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