TMI Blog2015 (3) TMI 699X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Tariff Act, 1985. A copy of this Notification dated 1st March, 1994 (Notification No.6 /94- C.E .) denotes that serial no.6 are bulk drugs on which 10% Adv. duty can be paid. There are no conditions attached and appearing in the table. - exemption as partially granted by this notification was available in both the cases namely clearance for home consumption and for export. If the Assessee in this case has paid duty at the tariff rate namely 20% and not availed of the exemption under the subject notification, and subsequently sought refund of the duty paid over and above 10%, or has made payment from the accumulated amount or the credit accumulated in his Modvat account, the Tribunal found that he could not have been denied th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty debited to the Cenvat Credit Account? 2. Mr. A.S . Rao , appearing in support of the Appeal would submit that very few facts are required to be referred by this Court for determining this question of law. The respondent Assessee is engaged in manufacturing of Paracetamol (bulk drug) falling under Chapter sub heading No.2907.90 of Central Excise Tariff Act, 1985. It is chargeable to duty @ 10% Adv. in terms of Notification No.6 of 1994 dated 1st March, 1994. Thus, for purpose of both home consumption and export, the Assessee can clear the goods and at the stage of removal thereof, he is required to pay Adv. Duty @ 10% in terms of this notification, which benefit has been availed of by the Assessee in both situations, namely of export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eading of Rule 12 of the Central Excise Rules. The Tribunal should have appreciated the fact that the amount having been paid from the Modvat and the accumulated credit available therein, refund or rebate was inadmissible. The Assessee should have as in earlier cases availed of the benefit of the partial exemption from payment of central excise duty, or it should have given up the entire benefit under the notification and paid duty at tariff rate and sought refund in terms of the then Rule 12 or Rule 18 of the Central Excise Rule, 2002. For these reasons Mr.Rao would submit that the substantial question of law should be answered in favour of the Revenue. 6. Mr. Nadkarni counsel for the Assessee on the other hand supports the impugned ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Tribunal found that he could not have been denied the relief. In the present case, Mr.Rao would invoke Rule 57 I, but we do not think that this was a case where any credit on the raw materials or inputs has been claimed, or availed of. This was a situation where the benefit of the partial exemption was not availed of by the Assessee . In case of export, though partial payment of duty is enough, the Assessee paid 20% duty namely at tariff rate and sought refund of the sum over and above that covered by the exemption notification. That he sought refund of the 10% differential amount of duty and obtained it. Merely because he made payment of duty at tariff rate, namely at 20% from Modvat account, does not mean that this was a case covere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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