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TMI Blog2015 (10) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacture of Caprolactum, two major bye-products emerge namely Lactum Ammonium Sulphate and Oxime Ammonium Sulphate, which are cleared to their Udyogamandal Division and used in the manufacture of Ammonium Sulphate which is cleared as fertilizer under 'NIL' rate of duty under Notification No. 6/2002, dated 1-3-2002 as amended and Notification No. 4/2006, dated 1-3-2006 till 28-2-2011. This exemption was withdrawn and concessional rate of duty of 1% ad valorem without Cenvat credit facility was introduced with effect from 1-3-2011 by issue of Notification No. 1/2011-C.E. If Cenvat credit is availed, the rate of duty of 0.5% as per Notification No. 2/2011-C.E., dated 1-3-2011. According to the proviso to Notification No. 1/2011-C.E., nothing c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kribhco Shyam Fertilizers Ltd. v. CCE, Lucknow [2013 (31) S.T.R. 79 (Tri.-Del.). 3. Learned AR would submit that the procedure followed by the appellant is not correct at all. He draws our attention to sub-rule 4 of Rule-3 of Cenvat Credit Rules wherein the second proviso which was inserted on 1st March 2011 clearly provided that Cenvat Credit shall not be utilized for payment of any duty of excise on goods in respect of which the benefit of exemption under Notification No. 1/2011-C.E., dated 1st March 2011 is availed. 4. We have considered the submissions made by both sides. According to Notification No. 1/2011, the proviso to the introductory paragraph provided that "nothing contained in this Notification shall apply to the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d further that Cenvat credit shall not be utilized for payment of any duty of excise on goods in respect of which the benefit of an exemption under Notification No. 1/2011-C.E., dated the 1st March 2011 is availed :", It is clear from the reproduced portion of the Rule that according to the proviso, no payment of duty can be made by utilizing the Cenvat Credit on goods in respect of which the benefit of exemption under Notification No. 1/2011-C.E., dated 1-3-2011 is availed. There is absolutely no ambiguity in the provisions of the Rules and the proviso was introduced simultaneously with the Notification. Therefore whether we go by the intention of the legislature or words used in the Notification and the Rules, the position is very clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... until those goods existed. Therefore, it becomes clear that Section 37 of the Act does not enable the authorities concerned to make a rule which is impugned herein and, therefore, we may have no hesitation to hold that the rule cannot be applied to the goods manufactured prior to 16-3-1995 on which duty had been paid and credit facility thereto has been availed of for the purpose of manufacture of further goods." In our opinion, this judgment is not at all applicable. 7. In the case of Ranbaxy Laboratories Ltd, (supra) Hon'ble High Court of H.P. was considering whether the credit already taken on inputs has to be reversed when final product is exempted. Here also no one is asking the appellant to reverse the credit already taken by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded under Notification No. 2/2011 or reverse the Cenvat credit availed with interest and pay the duty in cash for hearing the appeal. It is made clear that if the appellant opts for payment of differential duty by utilizing Cenvat credit and availing the benefit of Notification No. 2/2011, the appellant has to pay the interest in cash. Since the learned counsel could not make a choice during the course of hearing, the appellant is allowed to make a choice between the two options given above and pay interest and reverse Cenvat credit by specifically opting for a particular Notification. It is made clear that this is only a direction for the purpose of waiver of pre-deposit and should not be taken to mean that we have come to a final conclusi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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