The Assessee is free to choose the most beneficial Exemption Notification where two Exemption Notifications are available

[Bimal jain]

Dear Professional Colleague,

The Assessee is free to choose the most beneficial Exemption Notification where two Exemption Notifications are available

We are sharing with you an important judgment of Hon’ble CESTAT, Ahmedabad, in the case of Bharat Vijay Mills Vs. Commissioner of Central Excise, Ahmedabad-III [2015 (1) TMI 528 - CESTAT AHMEDABAD] on following issue:

Issue:

Whether the Assessee is free to choose the most beneficial Exemption Notification where two Exemption Notifications are available?

Facts and background:

Bharat Vijay Mills (“the Appellant”) was engaged in manufacturing of cotton fabric which was cleared to the domestic market as well as for export after the payment of Central Excise Duty. Such export of cotton fabric was made under claim of rebate of duty at the rate of 4% in terms of the Notification No. 59/2008-CE dated December 07, 2008 (“the Notification 59/08”). The Appellant had also availed Cenvat credit in respect of the Inputs, Capital goods and Input services used in the manufacture of the finished goods during the period from December 07, 2008 to July 06, 2009.

There was simultaneously full exemption i.e. nil rate of duty available under another Notification No. 58/08-CE dated December 07, 2008 (“the Notification 58/08”) for the same period. Both the Notifications i.e. the Notification No. 58/08 and the Notification No. 59/08 were issued under Section 5A (1) of the Central Excise Act, 1944 (“the Excise Act”).

The Department contended that the Appellant was required to reverse the Cenvat credit involved on the Inputs lying in their stock or in process of the finished goods or contained in finished goods lying in stock as on December 7, 2008, as the Appellant was not eligible for such Cenvat credit in accordance with the provisions of the Notifications No. 58/08.

The Department relied upon Section 5A(1A) of the Excise Act, which provides that where an absolute exemption is available under sub-section (1) of Section 5A of the Excise Act in respect of any excisable goods from the whole of the duty of Excise leviable thereon, the manufacturer of such excisable goods shall not pay the duty of Excise on such goods.

Further, as per Rule 6(1) and Rule 6(4) of the Cenvat Credit Rules, 2004 (“the Credit Rules”), the Cenvat credit shall not be allowed on such quantity of Inputs, Input services and Capital goods, which were used in the manufacture of exempted goods.

Accordingly Show Cause Notice was issued to the Appellant which was duly confirmed by the Adjudicating Authority. Being aggrieved, the Appellant filed an appeal before the Hon’ble CESTAT, Ahmedabad.

Held:

The Hon’ble CESTAT, Ahmedabad relied upon its own decision in the case of Arvind Ltd. Vs. CCE [2014 (6) TMI 271 - CESTAT AHMEDABAD]  and held that where two Exemption Notifications, one granting absolute unconditional exemption and other granting unconditional partial exemption, is available to the Assessee, the Assessee has an option to opt the Exemption Notification which is more beneficial to him. Accordingly, Section 5A(1A) of the Excise Act is inapplicable in such a case and the Cenvat credit availed by the Appellant is valid.

Hope the information will assist you in your Professional endeavors. In case of any query/ information, please do not hesitate to write back to us.

Thanks and Best Regards,

Bimal Jain

FCA, FCS, LLB, B.Com (Hons)

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