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2003 (12) TMI 86 - AT - Central ExciseSSI Exemption - Opting out - Whether an assessee who paid the duty at the normal rate at the commencement of the financial year under the provisions of Notification 1/93 and thereafter was eligible to avail the benefit of Notification 1/93 during the same financial year if he satisfies other conditions? - HELD THAT - In the present case the assessee M/s. Ankit Packaging Ltd. did not opt for not availing the benefit. Instead it wrote on 10-4-1998 stating that it was availing the benefit of the exemption and was clearing the goods in terms of the notification. Therefore the finding of the lower authority is contrary to the appellant s option. The notification calls for specific opting out by a manufacturer. There was no requirement to opt in. In the present case the assessee has also written to the department informing that it was wanting to avail the exemption notification. In the face of such opting in there was no justification for interpreting the payment of duty on some goods as opting out. Moreover the assessee has also explained his reason for clearing some goods on payment of duty at the beginning of the financial year; it required some time to compute the aggregate value of the clearances made during the preceding financial year so as to be sure that it had not exceeded the qualifying value limit during the preceding financial year. Thus paying duty on the goods cleared during the opening days of the Financial Year was only erring in favour of the revenue and not foregoing an exemption. Such caution in an assessee cannot be turned against him. We find that a similar issue had come up before us in the case of C.C.E. Coimbatore v. Marutham Textiles (P) Ltd. and Others 2003 (2) TMI 86 - CEGAT NEW DELHI and we took the view that clearance of some goods in the beginning of the financial year on payment of duty was no ground for holding that the assessee who was an entitled small scale unit has opted out of the benefit of Notification No. 1/93.
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