TMI Blog2014 (6) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... s stipulated under Rule 57C(2) as well as Rule 57CC(6)1 and there was no need to comply with the provisions of rule 57CC1). Therefore, it is clear that an amount of 8% of the price of the goods exported is not required to be paid irrespective of whether the exported goods are exempted or otherwise - Even though Rule 6(1) of the Cenvat Credit Rules, 2004 provides that no Cenvat credit will be available in respect of the inputs used in the manufacture of exempted products, Rule 6(6)(v) of the Cenvat Credit Rules creates an exemption inter alia in respect of the excisable goods removed without payment of duty for export under bond in terms of Central Excise Rules, 2002. Considering the language of Rule 6(6)(v) of the Cenvat Credit Rules, 2004 the petitioners are entitled to avail Cenvat credit in respect of the inputs used in the manufacture of the final products being exported irrespective of the fact that the final products are otherwise exempt. Provisions of Rule 6(1) of Cenvat Credit Rules are not attracted in the present facts and circumstances when 100% cotton fabrics attracting nil rate of duty are exported and CENVAT Credit was not deniable to the appellants - Decided in fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt for payment of duty @4% on export of 100% cotton Fabrics under Notification No.59/2008-CE when the goods were unconditionally exempted from payment of duty under Notification No.29/2004-CE as amended on 07.12.2008. Therefore, Revenue issued show cause notices to the appellants for recovery of CENVAT Credit taken by them during the period from 07.12.2008 to 31.03.2009 on the grounds that the appellants were not eligible for the same in view of the provisions of Rule 6(1) and Rule 6 (4) of the CENVAT Credit Rules, 2004 as their final product (100% Cotton Fabric) was unconditionally exempt from payment of duty under the said Notification No.29/2004-CE as amended on 07.12.2008. The original adjudicating authorities disallowed CENVAT Credit to the appellants and ordered for recovery of the same along with interest under Rule 14 of the CENVAT Credit Rules, 2004 and imposed penalties on them under Rule 15 of the CENVAT Credit Rules, 2004. On appeal by the appellants, the Commissioner (Appeals) rejected their appeals vide the impugned Order-in-Appeal. 3. Shri S.J. Vyas, Ld. Advocate for the appellants, argued as follows: (i) When two notifications are operative, it is the choice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in-Appeal has been correctly passed by the Commissioner (Appeals) and appellants were not required to pay any duty in view of the provision contained in Section 5A of the Central Excise Act, 1944. 5. Heard both sides and perused the case records. The issues to be decided before the bench are: (i) Whether it is the choice of the assessee to select any notification and pay duty or avail exemption when two notifications, one granting absolute unconditional exemption to excisable goods and the other granting unconditional partial exemption to the said goods, are operative simultaneously and whether Section 5A(1A) of the Central Excise Act, 1944 would be applicable, (ii) Whether the provisions of Rule 6(1) or Rule 6(6) of CENVAT Credit Rules, 2004 was applicable to appellant s case. 6. With regard to the first issue at paragraph no.5(i), we find that the issue is no more res-integra and has been decided by Apex Court in the case of Collector of Central Excise, Baroda Vs. Indian Petro Chemicals (supra), Hon ble Apex Court has laid the following law: We have read the judgment and order of the Customs, Excise and Gold (Control) Appellate Tribunal under appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefits one of the MODVAT Scheme and the other of the exemption notification unless expressly permitted to do so. In case a manufacturer is covered both under the MODVAT scheme and an exemption notification, then the manufacturer should have right to choose to avail the benefit of either of the two whichever is more attractive and beneficial. The choice once exercised is binding and final and interchange may not be permissible, unless allowed but this is different to arguing that choice is available. The two provisions are in alternative but the right of choice is not curtailed. 9. In view of the above, we hold that when two exemption notifications, one granting absolute unconditional exemption to excisable goods and the other granting unconditional partial exemption to the said goods, are operative simultaneously, it is the choice of the appellant to opt for that notification which is more beneficial to him. In the present facts and circumstances of these appeals, provisions of Section 5A(1A) of the Central Excise Act, 1944 are not applicable. 10. On the second issue at paragraph no.5(ii) above, we find that in the matter of Repro India Limited Vs. Union of India - [2009 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7C and 57CC. Further, the present rule 57AD(4) clearly goes on to show that the exempted goods are eligible to be exported under bond. To interpret otherwise will render the new rule 57AD(4) redundant. In view of the foregoing in this case the provisions of sub-rule 57C(1) are satisfied as stipulated under Rule 57C(2) as well as Rule 57CC(6)1 and there was no need to comply with the provisions of rule 57CC1). Therefore, it is clear that an amount of 8% of the price of the goods exported is not required to be paid irrespective of whether the exported goods are exempted or otherwise. It would thus appear that the direction of the respondent No. 2 to the petitioners to pay 10% even though printed books were exported is not legally sustainable. It is only in the event the petitioners does not export the printed goods and do not maintain the account as contemplated by rule 6(2) the petitioner would be required to pay 10% on the sale price of the printed books not so exported. Even though Rule 6(1) of the Cenvat Credit Rules, 2004 provides that no Cenvat credit will be available in respect of the inputs used in the manufacture of exempted products, Rule 6(6)(v) of the Cenvat Cre ..... 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