TMI Blog2009 (10) TMI 756X X X X Extracts X X X X X X X X Extracts X X X X ..... facturing process of the final product. However, sub-rule (5) of the said Rules which was in force at the relevant time, clearly provided that the provision to sub-rule (1) would not be applicable in case the exempted goods were cleared for export under bond in terms of the provision of the Central Excise Rules, 2002. Considering the said provision, certainly the assessee could have availed the benefit under the said provisions and therefore, it cannot be said that the respondent would be disentitled for the rebate on the said ground. Appeal dismissed - decided against Revenue. - 81/2005 - 884/2009(EX)(PB) - Dated:- 7-10-2009 - R.M.S. Khandeparkar and Shri Rakesh Kumar, JJ. Shri Anil Khanna, DR, for the Appellant. Ms. Reena Khair with Shri Abhishek Jaju, Advocates, for the Respondent. ORDER Heard at length the learned DR for the appellants and learned Advocate for the respondents. 2. This appeal arises from order dated 29-10-2004 passed by the Commissioner (Appeals), Jaipur. By the impugned order, the Commissioner (Appeals) has allowed four appeals filed by the respondents against the four orders passed by the Deputy Commissioner on 9-8-2004 with reference to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment before the Hon ble Supreme Court. 5. On the other hand, learned Advocate for the respondent drawing our attention to Rule 6 of the Cenvat Credit Rules, 2002 and further placing reliance in the decision of Commissioner v. Jayant Oil Mills reported in 2009 (235) E.L.T. 223, CCE, Delhi-I v. Punjab Stainless Steel reported in 2009 (234) E.L.T. 605, CCE Cus. (Appeals), Ahmedabad v. Narayan Polyplast reported in 2005 (179) E.L.T. 20 (S.C.), Hico Products Ltd. v. CCE reported in 1994 (71) E.L.T. 339 (S.C.), CCE, Pune v. Pudumjee Pulp Paper Mills Ltd. reported in 2006 (198) E.L.T. 330 (S.C.) and unreported order of the Tribunal in the matter of M/s. Punjab Stainless Steel Industries v. CCE, Delhi-I delivered on 25-1-2008 [2008 (226) E.L.T. 587 (Tri.-Del.)] submitted that in cases of exemption under the Excise Act, it is the right of the assessee either to opt to avail benefit of exemption or to pay the duty as prescribed under the tariff provisions. The respondent having chosen to pay the duty, they can not be denied the benefits which they thereafter entitled to avail under the statutory provisions and therefore, no fault can be found with the claim of rebate under Rule 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he exemption notification is to forgo due duty and confer certain benefits upon the manufacturer or the buyer, or the consumer through the manufacturer, as the case may be. 9. The Apex Court in the said matter was dealing with various issues including the classification of the product, but the same was for the period from August 1982 to January 1983. 10. In Jayant Oil Mills case, the Hon ble Gujarat High Court while dealing with the issue as to whether an assessee who has exported goods on which duty is leviable can claim rebate of duty paid without availing of exemption granted under a notification, held as under :- It cannot be disputed that levy of duty is prescribed by provisions of the Central Excise Act, 1944 and the rate of duty is prescribed by the Tariff Act. Therefore, once the duty is validly levied in accordance with the provisions of the statute, the said levy does not disappear or cannot get obliterated merely because by virtue of a notification, partial or full exemption is granted. Therefore, there is no question of an assessee exercising any option as such. There are two rates of duty prescribed by the statute : [1] as per the Tariff Act, and [2] As per the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... put on disadvantageous position . 13. In Pudumjee Pulp Paper Mills case, the Apex Court while dealing with the effect of amendment to Section 5A observed that prima facie the amended provision appears to have come into force from 13th May , 2005 and it does not appear to be of retrospective in nature. However, the Apex Court did not express any final opinion on the said issue and left the question open. 14. In Narayan Polyplast case, the Apex Court did not interfere with the order of the Tribunal on the ground that the issue which was sought to be raised was already decided by the Tribunal in another matter and that was not subjected to any further challenge by the department. 15. The decision of the Tribunal in Punjab Stainless Steel Industries case was sought to be challenged before the Hon ble High Court of Delhi without any success. While rejecting the appeal, it was observed that it is the option of the assessee either to claim the drawback or to claim the refund of credit. 16. In Punjab Tractors case, the Apex Court held that it was not in dispute that the manufacturer had in fact paid the duty on the procured components for the junior tractors and that the credit w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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