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2015 (11) TMI 43 - CESTAT NEW DELHI

2015 (11) TMI 43 - CESTAT NEW DELHI - 2016 (332) E.L.T. 161 (Tri. - Del.) - Duty demand u/s 11D - Denial of Cenvat Credit - activity of repacking from bulk to retail pack of refined edible oil - payment of duty in terms of the notification no. 37/03-CE dated 30.04.2003 - Held that:- Notification gives option of either paying duty of ₹ 1/- per kg. or claiming exemption of nil rate of duty on the goods which are refined edible oils and if they are packed into unit containers. It is also seen .....

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two options, the choice of the appellant to choose an option which is beneficial to him cannot be faulted with. - as it is seen that entry no. 244 (B) & (C) do not have any condition and are also not mutually exclusive. It is settled law that when there are two views possible on notification, the view which is more beneficial to the assessee is to be applied. In this case appellant feels that payment at discharge of duty at ₹ 1 per kg of unit container of refined edible oil manufactured b .....

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d 30.04.2003 and chose to pay duty at the rate of ₹ 1 per Kg. In these circumstances, Cenvat Credit cannot be denaied to the appellant and appellant is availing Cenvat Credit and Paying duty on their final product. Therefore, provisions of section 11D are not applicable to the facts of this case. - Impugned order is set aside - Decided in favour of assessee. - Appeal No. E/3780/2006-EX(DB) - Final Order No. A/52862/2015-EX(DB) - Dated:- 4-9-2015 - Ashok Jindal, Member (J) And B Ravichandra .....

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d the same on payment of duty in terms of the notification no. 37/03-CE dated 30.04.2003. Revenue is of the view that in terms of notification no. 6/2002-CE dated 01.03.2002 as amended by notification no. 37/03-CE dated 30.04.2003 the 100% soya refined edible oil manufactured out of refined edible oil on which appropriate duty of excise has already been paid attracts nil rate of duty. Therefore, appellant was not required to pay duty at the time of clearance of repacked refined edible soya oil. .....

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Excise Act 1994 along with interest. The proposal also made for imposing penalty on the appellant. Both the lower authorities adjudicated the matter denying Cenvat Credit and confirmed the duty under section 11D of the Act along with interest and imposed penalty on the appellant. Aggrieved from the said order appellant is before us. 3. The Ld. Consultant appearing on behalf of the appellant submits that as per notification no. 37/2003-CE dated 30.04.2003 (SI. No. 244 (B), 244 (C)) the refined ed .....

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ble oil. In fact, appellant is engaged only in the activity of repacking in retail pack out of bulk packing and appellant has not taken any activity of process namely treatment with alkali acid, bleaching or deodorization, etc. Therefore, clause (C) at SI. No. 244 of the notification is not applicable to the appellant and as per Chapter note 4 of Chapter 15 of the Central Excise Tariff Act 1985 the activity of repacking from bulk to retail pack amounts to manufacture as the appellant is engaged .....

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the notification no. 37/2003-CE dated 30.04.2003 (SI. No. 244(B) & (C)). One is without any condition and one is imposing certain conditions. In that case which entry is more beneficial to the appellant, appellant is entitled to take benefit of the said entry. As held by the Hon'ble Apex Court in the case of HCL Ltd. Vs. CCE-2001 (130) ELT 405 (SC) , which has been followed by this Tribunal in the case of Manglam Alloys Ltd. Vs. CCE Ahmedabad reported in 2010 (255) ELT 124 (Tri-Amd). Th .....

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manufacture. Now the issue before us is that whether the final product cleared by the appellant is exempted as per clause (C) of the SI. No. 244 of the Notification or is liable to duty as per clause B of SI. No. 244 of the Notification or not. Identical issue came up before this Tribunal in the case of Sariba Agro Ltd. (Supra) wherein the facts of the case are as under:"2.1 The appellant is manufacturing packed refined edible oil processed from seed extraction and crude oil and clearing t .....

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refined oil provided by ATFL Besides the above, the appellant is also taking into credit of the duty paid on packing material used for packing the refined edible oil manufactured by him as well as supplied by the ATFL." 7. We have also exempted notification which is reproduced here for better appreciation: 5. We have considered the submissions made at length by both sides and perused the records. The undisputed facts are that the appellants are procuring duty paid refined edible oil in bulk .....

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o. 6/2002. 244 15.02 or 15.03 The following goods namely:- (A) All goods other than refined edible oils Nil (B) Refined edible oils Re. one per kilogram (C) Refined edible oils, if manufactured out of refined edible oils on which the appropriate, duty of excise under the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) or as the case may be, the additional customs duty under the customs Tariff Act, 1975 (51 of 1975) has already been paid. Explanation - For the purpose of this ex .....

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seen from the above reproduced portion of the Notification that the said Notification gives option of either paying duty of ₹ 1/- per kg. or claiming exemption of nil rate of duty on the goods which are refined edible oils and if they are packed into unit containers. It is also seen that Entry Nos. 244(B) and (C) do not have any condition and are also not mutually exclusive. It is a settled law that when there are two views possible on a Notification, the view which is more beneficial to .....

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ion and are also not mutually exclusive. It is settled law that when there are two views possible on notification, the view which is more beneficial to the assessee is to be applied. In this case appellant feels that payment at discharge of duty at ₹ 1 per kg of unit container of refined edible oil manufactured by them would be more advantageous to them and has chosen to pay them. With notification itself give 2 options. Choice of the appellant to chose an option which is more beneficial t .....

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