TMI Blog2016 (3) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... rate specified in the Central Excise Tariff. Therefore the revenue cannot insist the respondent that they should have compulsorily availed the exemption notifications nos. 17/98 CE dated 18/9/1998 and Notification No. 5/99 CE dated 28/2/1999, for this reason in our view whole proceedings for recovery of an amount of ₹ 5,94,493/- and appropriation thereof was illegal. Demand of an amount u/s 11D - Cenvat / Modvat Credit reversed towards exempted goods shown and claimed in the Invoice - - As regard the demand of ₹ 6,47,313/- paid under Rule 57CC by invoking Section 11D, we find that it is very clear from the invoices that respondent have not recovered the amount of 8% reversed by them under Rule 57CC. This was correctly obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s was 8% during the period 18/9/1998 to February, 2000 while w.e.f. 1/3/2000 onwards, it was NIL. The respondent, despite the aforesaid exemption, they were paying 8% duty and such duty was recovered from their customers. From March, 2000 onward tariff rate being NIL, they paid an amount of 8% of the value of the said goods under Rule 57 CC of the erstwhile Central Excise Rules, 1944. In the show cause notice it was alleged that the appellant should have availed the exemption vide notification No. 17/98-CE and 5/99-CE and clear the said goods under NIL rate of duty and paid an amount of 8% of the value of the said goods under Rule 57CC. It was further alleged that the amount of 8% of price of the exempted goods was not the Central Excise du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o confirm the appropriation of amount of ₹ 5,94,493/- paid by the assessee vide TR6 Challan No. 008/2001-2002 dated 20/11/2001 towards the amount payable to the Government in terms of Section 11D(1) of Central Excise Act, 1944. Aggrieved by the aforesaid order-in-original dated 23/1/2004 the respondent filed appeal before the Commissioner (Appeals) which was allowed by setting aside the order-in-original therefore the Revenue is before us. 3. Shri. Devinder Singh Maan, Ld. Asstt. Commissioner (A.R.) appearing on behalf of the Revenue (Appellant) reiterating the grounds of appeal submits that during the exemption till February, 2000 the respondent were supposed to avail the exemption and accordingly instead of paying duty they sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se duty at the tariff rate i.e. 8% despite the exemption. Notification No. 17/98 CE dated 18/9/1998 and Notification No. 5/99 CE dated 28/2/1999 were available. The question whether the appellant has option to pay the duty despite the exemption under the notifications, we refer to Section 5A which is reproduce below: (1) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette, exempt generally either absolutely or subject to such conditions (to be fulfilled before or after removal) as may be specified in the notification, excisable goods of any specified description from the whole or any part of the duty of excise leviable thereon: Provided that, unle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the respondent that they should have compulsorily availed the exemption notifications nos. 17/98 CE dated 18/9/1998 and Notification No. 5/99 CE dated 28/2/1999, for this reason in our view whole proceedings for recovery of an amount of ₹ 5,94,493/- and appropriation thereof was illegal. As regard the demand of ₹ 6,47,313/- paid under Rule 57CC by invoking Section 11D, we find that it is very clear from the invoices that respondent have not recovered the amount of 8% reversed by them under Rule 57CC. This was correctly observed by Ld. Commissioner (Appeals). The revenue also, on the contrary, could not produce any evidence to support their allegation of recovery of the said amount by the respondent, therefore the demand under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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