TMI Blog2006 (2) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... was followed, with approval, by the Allahabad High Court in the case of Hello Minerals Water (P) Ltd.[ 2004 (7) TMI 98 - ALLAHABAD HIGH COURT] , the benefit of Notification No. 452/86-C.E. was allowed to the assessee, subject to reversal of credit on inputs. In the instant case also, we are of the considered view that, if the payment by the appellants is found to have compensated the availment and utilization of input duty credit and capital goods credit for the periods 1997-98 1998-99, the benefit of Notification No. 5/99-C.E. can be allowed to them in respect of the finished goods cleared during the period of dispute. In such a context, any particular word or expression used in Condition No. 21 of the notification does not arise for inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he additional duty leviable under the Customs Tariff Act, 1975 (51 of 1975), has already been paid; and (iii) no credit under Rule 57A or 57B or 57Q of the Central Excise Rules, 1944 has been availed in the process of dyeing, printing, bleaching or mercerising in the manufacture of dyed, printed, bleached or mercerised yarn. The show cause notice issued by the Department demanding the above duty on dyed polyester yarn manufactured and cleared by the appellants from 1-3-1999 to 16-9-1999 alleged that, as they had availed Modvat credit on inputs and capital goods during 1997-98 and 1998-99 and had utilised such credit for payment of duty on final products during such period, they did not fulfil Condition No. 21(iii) and consequently the benef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 94 Learned Senior Advocate argued that, in all the cited cases, equity was done to assessees who claimed tax exemption under statutory provision/notification by undoing breach of conditions, originally committed. In the instant case, any breach of Condition No. 21(iii) of Notification No. 5/99-C.E. should be held to have been undone through the payment made on 10-1-2005 and the benefit of the notification should be allowed to the assessee. Learned SDR reiterated the findings of the Commissioner. 3. We have given careful consideration to the submissions. The only allegation raised in the show cause notice against the appellants for denying the benefit of the above notification to them in respect of final product cleared from their factory du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efit of Notification No. 452/86-C.E. was allowed to the assessee, subject to reversal of credit on inputs. In the instant case also, we are of the considered view that, if the aforesaid payment of Rs. 4,16,161/- by the appellants is found to have compensated the availment and utilization of input duty credit and capital goods credit for the periods 1997-98 1998-99, the benefit of Notification No. 5/99-C.E. can be allowed to them in respect of the finished goods cleared during the period of dispute. In such a context, any particular word or expression used in Condition No. 21 of the notification does not arise for interpretation. 4. In the result, following the precedents cited by learned counsel, we set aside the impugned order and allow th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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