2007 (6) TMI 130 - AT - Central Excise

Exemption The appellant has an option either he availed exemption or he pay the duty on final product and thereafter availed the credit Mandatory availment of exemption come with effect from 13-5-2005 so not applied in the present case tribunal set aside demand and penalty affix on appellant

Summary

Issues:
Confirmation of demand of duty and consequent penalty on the respondent for paying duty on exempted final products, applicability of exemption notification under Section 5A of Central Excise Act, availability of Cenvat credit, impact of judicial precedents on the case, and the effect of the amendment to Section 5A brought by the Central Government.

Analysis:
The appeal before the Appellate Tribunal CESTAT, Mumbai was filed by the Revenue against Order-in-Appeal No. AT/139/M.III/2006 dated 28-2-06. The respondents did not appear nor filed a cross-objection. The main issue revolved around the confirmation of demand of duty and penalty on the respondent for paying duty on final products exempted by Notification No. 10/2003. The demand was based on the Cenvat credit availed by the respondent and the recovery of 8% of the price of exempted goods. The Ld. Commissioner (Appeals) analyzed the case and concluded that the appellants were not bound to avail the exemption under the notification and could choose to pay duty to avail Cenvat credit, citing relevant judicial precedents like the Steel Authority of India case and the Narayan Polyplast case decided by the Supreme Court. The Commissioner (Appeals) found the impugned order unsustainable due to the settled legal position that an assessee has the option to avail exemption or pay duty.

The Ld. Commissioner (Appeals) correctly followed the settled law that if an exemption is granted, the assessee can choose to avail it or pay duty, as established by the Supreme Court in the Narayan Polyplast case. Additionally, a crucial amendment to Section 5A by the Central Government made it mandatory for the assessee to avail exemption, but this amendment was effective from 13-5-2005, while the period in question in this case was January 2004 to December 2004. Therefore, the mandatory exemption provision could not be applied retroactively to the appeal. Consequently, the Ld. Commissioner (Appeals) was deemed to have correctly applied the law in this matter.

In conclusion, considering the facts and circumstances, the Appellate Tribunal found no reason to interfere with the impugned order. The appeal filed by the Revenue was rejected, affirming the correctness of the decision made by the Ld. Commissioner (Appeals).