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TMI Blog2010 (8) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants and the learned Jt. CDR for the respondent. Perused the records. 3. The issue that arises in these matters is, whether concessional rate of duty in terms of Notification No. 14/2002-C.E., dated 1-3-2002 is available to the appellants or not. 4. The appellants are engaged in the manufacture of man made processed knitted fabrics classified under Tariff sub-heading No. 6002.93 of the Central Excise Tariff Act, 1985. The said goods are subject to central excise duty @ 16% BED and 8% AED. The appellants, however, were paying concessional rate of duty as prescribed under the said Notification in relation to the products specified under S. No. 16 of the Table in the said Notification. In terms of S. No. 16 of the said Table read with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is difficult to accept the contention that the benefit under the said notification would be available irrespective of the fact whether the yarn or fabric has been actually subjected to the payment of duty or not. While referring to the expression "any notification for time being in force" and stressing the word "any" therein, it was sought to be contended that the condition cannot be restricted to those notifications which do not prescribe nil rate of duty and rather, they would include the notifications prescribing nil rate of duty. As already observed above, the expression is qualified by another expression namely "has been paid". Being so, it is not possible to give wider meaning to the words "any" preceding words "notification" and ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claiming benefit under the said notification. The assessee is absolved of such primary burden. The fiction that is created under the notification therefore essentially relates to the requirement of evidence pertaining to the discharge of such burden. It cannot be extended beyond the said scope of the fiction. If it is extended to the fact of actual payment itself, it will virtually amount to rewriting the explanation. As already observed above, in order to give full effect to a legal fiction, the Courts and Tribunals are not empowered to create another fiction which is not contemplated under the provision. 31. Explanation II to the said notification which is essentially for the purpose of condition specified thereunder creates a deemi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of duty on grey fabrics arose on satisfaction of the said two conditions". Though, the exemption notification in question was not subject matter of detail discussion, in the said case, the Apex Court clearly took note of the fact that in order to avail benefit under the said notification, it was necessary to comply with the conditions specified thereunder and those conditions include the condition regarding the payment of duty on the yarn." 7. The learned advocate for the appellants, however, drawing our attention to the decision of the Delhi High Court in the matter of Commissioner of Central Excise v. M.B. Dyers, reported in 2010 (253) E.L.T. 402 (Del.), submitted that the parties were held to be entitled for deemed credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tariff Act, 1975, as the case may be, has been paid;" The same was considered in detail in Auro Textile's case (supra) and the relevant paras therefrom are already quoted above. 10. Nothing has been pointed out to us to take any different view in the matter. The fact that the inputs were received by the appellants either in the form of unprocessed knitted fabric or yarn, the same were not subjected to the duty payment is clearly revealed from the records. Whether the goods are subjected to payment of duty or not has to be established by procuring necessary material as regards the payment of duty by the assessee who wants to claim necessary concession under the Notification in question. The burden in that regard would lie upon the cla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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