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2015 (10) TMI 100 - AT - Central ExciseWaiver of pre deposit - Rate of duty @1% subject to non-availment of cenvat credit - Notification no/ 1/2011 - appellants submitted that they had not taken credit of duty paid on inputs or tax paid on services at all. What they had done was, they had accumulated Cenvat credit in their books which had arisen as a result of export of Caprolactum, a dutiable product. - Held that:- According to Notification No. 1/2011, the proviso to the introductory paragraph provided that “nothing contained in this Notification shall apply to the goods in respect of which credit of duty on inputs or tax on input services has been taken under the provisions of Cenvat Credit Rules, 2004.” Therefore we find considerable force in the arguments advanced by the learned counsel that proviso in the Notification does not bar payment of duty by utilizing Cenvat credit available in the books. Only if the credit of duty/tax paid on inputs or input services is taken, the benefit of the Notification would not be available. It was a categorical submission on behalf of the appellant that they have not taken such credit. There is no finding in the impugned order also that appellants have taken such credit. Nevertheless, the Notification cannot be read in isolation. Availment and utilization of Cenvat credit on inputs and input services is regulated by Cenvat Credit Rules and whether it is taking the credit or utilizing the same it has to be in accordance with the provisions of Cenvat Credit Rules. In the hierarchy of statutory provisions, the Notification is one rung below the Rules and therefore the Notification has to be read with the Rules and cannot be read in isolation. In view of the discussion, the appellant clearly does not have a case prima facie on merits. - Partial stay granted.
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