TMI Blog2015 (10) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... n input services has been taken under the provisions of Cenvat Credit Rules, 2004.” Therefore we find considerable force in the arguments advanced by the learned counsel that proviso in the Notification does not bar payment of duty by utilizing Cenvat credit available in the books. Only if the credit of duty/tax paid on inputs or input services is taken, the benefit of the Notification would not be available. It was a categorical submission on behalf of the appellant that they have not taken such credit. There is no finding in the impugned order also that appellants have taken such credit. Nevertheless, the Notification cannot be read in isolation. Availment and utilization of Cenvat credit on inputs and input services is regulated b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 contained in the Notification shall apply to the goods in respect of which credit of duty on inputs or tax on input services has been taken under the provisions of Cenvat Credit Rules, 2004. Taking a view that appellant had taken Cenvat credit and utilised the same for payment of duty for clearance of fertilizers as per Notification No. 1/2011 and are liable to pay at 5% for the Ammonium Sulphate cleared as fertilizer products were initiated by issue of show-cause notice culminating in the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave 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 goods in respect of which credit of duty on inputs or tax on input services has been taken under the provisions of Cenvat Credit Rules, 2004. Therefore we find considerable force in the arguments advanced by the learned counsel that proviso in the Notification does not bar payment of duty by utilizing Cenvat credit available in the books. Only if the credit of duty/tax paid on inputs or input services is taken, the benefit of the Notification would not be available. It was a categorical submission on behalf of the appellant that they have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 and once the assessee utilized the Cenvat credit for payment of duty, payment has to be made @ 5% only. 6. It would be appropriate to consider the decisions relied upon by the learned counsel. In the case of Eicher Motors Ltd., Hon ble Supreme Court was considering whether application of Rule 57F(4A) of Central Excise Rules, 1944, to take a view that credit lying unutilized on 16-3-1995 lapses or not. That is not the situation before us. No stand has been taken by the Revenue that accumulated credit has lapsed. Here the question is whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 them. Therefore, the decision has no relevance. 8. In the case of Kribhco Shyam Fertilizers Ltd. (supra), the Tribunal was considering stay application and normally the decisions in stay applications are not considered as precedent. In any case, in that case also, the decision was rendered on the ground that service tax credit was taken in respect of sale of intermediate product namely Ammonia to outside parties. Commission Agency Service tax credit was not availed for service tax and commission paid for sale of final product. Therefore it was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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