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TMI Blog2010 (4) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... reduction in penalty amount. By order dated 7-1-2009, the Joint Commissioner, Rohtak had confirmed an amount equal to 10% of the total price which was Rs. 14,40,045/- or the value of the goods of Rs. 1,44,00,446/- cleared without payment of duty and ordered recovery of the said amount under Rule 6(3)(b) of the Cenvat Credit Rules, 2004 read with Section 11A of the Central Excise Act, 1944 and had imposed equal amount of penalty and had also ordered recovery of interest. 2. The appellants are engaged in the manufacture of MS pipes and tubes of various quality, sizes and description classifiable under chapter 73 of the Central Excise Tariff Act, 1985. Pursuant to the investigation by the Department, it is said to have been revealed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E. (N.T.), dated 31-12-08 was not in force as the said amendment came into force w.e.f. 31-12-2008 and, therefore, considering the provisions of law at the relevant time, the appellants were not entitled for the benefit of cenvat credit on account of the goods having been cleared without payment of duty. 5. Rule 6(6)(i) of the Cenvat Credit Rules provides that the provisions of sub-rule (i), (ii), (iii) and (iv) of Rule 6 are not applicable in cases the excisable goods are removed without payment of duty; or cleared to a unit in a special economic zone; or to a developer of special economic zone for their authorized operation. However, prior to 1st January 2009 the said provision of law provided that the provisions of sub-rule (i), (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed in the decision of the Tribunal in the case of Sujana Metal Products Ltd. (supra). If one peruses the Notification No. 50/2008-C.E. (N.T.), dated 31-12-08, it clearly says that the amendment shall come into force on the date of the publication in the official gazette and it was published in the official gazette on 31-12-08. Obviously, therefore, on the face of it, the amendment which is sought to be introduced under the notification could be effective and enforceable from 31-12-08. The amendment relates to certain benefits in the nature of exemption from the restriction imposed for the availing of cenvat credit in cases where the final products are exempt from the payment of duty. Rule 6(6) of the said Rules provides that certain pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omic zone for their authorized operations or". The expression "substituted" used in the said notification nowhere suggests, in our considered opinion, that the rule is in the nature of clarification. In fact, as already pointed out above, the earlier rule specifically provided that the benefit would be available to the goods cleared to a unit in a special economic zone. It is only from 31-12-2008 that similar benefit has been extended to a developer of a special economic zone for their authroised operations. Being so, merely because in the main body of amending provision the term "substituted" is used that itself can not lead to conclusion that the proposed amendment is in the nature of clarification. Neither the said notification gives an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also undisputed fact that the order passed by the Tribunal in Sujana Metal Products does not seem to have been challenged by the department. In the above circumstances, in our considered opinion, prima facie case has been made out for grant of stay to the demand made under the impugned order. 12. In the circumstances while allowing the application for stay and waiving the demand under the impugned order till the disposal of the appeal, we direct the registry to place this matter before the President for constitution of the appropriate Larger Bench to decide the issue as to whether the amendment introduced to Rule 6(6)(i) of the Cenvat Credit Rules, 2004 under Notification No. 50/2008-C.E. (N.T.), dated 31-12-2008 is either clarifi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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