TMI Blog2015 (10) TMI 2272X X X X Extracts X X X X X X X X Extracts X X X X ..... f the goods which are fully exempted from payment of duty. Holistic reading of the provisions of Rule 11(3) would indicate that it will apply only in the case when final products are totally exempted. This view has been held by this Tribunal in final order [2015 (10) TMI 844 - CESTAT MUMBAI] in the appellant s own case. - impugned order is unsustainable and liable to be set aside - Decided in favour of assessee. - Appeal No. E/85524/13 - Final Order No. A/3154/2015-WZB/EB - Dated:- 31-8-2015 - Mr. M.V. Ravindran, Member (Judicial) And Mr. C.J. Mathew, Member (Technical) For the Petitioner : Shri S.A. Gundecha, Advocate For the respondent : Shri Ajay Kumar, Jt. Commr (AR) ORDER Per: M.V. Ravindran This appeal is d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demanded as lapsed as per the provisions of Rule 11 of the Cenvat Credit Rules, 2004 and CBEC Circular No. 77/1999 was also pressed into service. He would take us through the entire Rule 11 of the Cenvat Credit Rules, 2004 as also the Section 5A of the Central Excise Act, 1944. He would submit that the findings of the lower authorities are totally mis-directed in as much appellant had exported the tractors and parts thereof while clearances to DTA from EOU were chargeable to Central Excise duty and during the period in question, CENVAT credit was allowed on the goods which were brought into EOU. He would read the Notification No. 24/2003-C.E. and also submit that the final products cleared from the appellant s factory are liable for duty wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On this factual matrix, we analyse the provisions of Rule 11(3) of Cenvat Credit Rules, 2004 which reads as under. Sub-rule (3) of Rule 11 : 3) manufacturer or producer of a final product shall be required to pay an amount equivalent to the Cenvat credit, if any, taken by him in respect of inputs received for use in the manufacture of the said final product and is lying in stock or in process or is contained in the final product lying in stock, if, - (i) he opts for exemption from whole of the duty of excise leviable on the said final product manufactured or produced by him under a notification issued under Section 5A of the Act; or (ii) the said final product has been exempted absolutely under Section 5A of the Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icable in the facts of this case which is not disputed that there is a discharge of Central Excise duty liability on the other finished products manufactured and cleared like aggregates, components parts of tractors. The above said view, is fortified by the judgement of the Tribunal in the case of Shree Baba (supra) wherein after extracting sub-rule 3 of Rule 11 of the Cenvat Credit Rules, the Bench recorded as under:- 7.1 From a perusal of this sub-rule, it is clear that this sub-rule would be applicable if the some Cenvat credit availed inputs are being used for manufacture of a final product and that final product has become fully exempt from duty. In such a situation, the assessee would be liable to pay an amount equal to the Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le in the case in hand. Reliance placed by the learned D.R. in the case of Bajaj Foods Ltd. (supra) will not carry the Revenues case any further in as much the said Bajaj Foods Ltd. Case, the factual findings are that the goods manufactured by the appellant therein when he converted to DTA were fully exempted from payment of duty and the reliance placed on the decision of Jt. Secretary, Department of Revenue in the case of Technocraft Industries (India) Ltd. (supra) also may not be applicable as in that case the issue was not the applicability of sub-rule 3 of Rule 11 of Cenvat Credit Rules. 6.5 In view of the foregoing and authoritative judicial pronouncement, we find that the impugned order is unsustainable and liable to be set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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