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2016 (10) TMI 30 - CESTAT KOLKATA

2016 (10) TMI 30 - CESTAT KOLKATA - TMI - SSI Exemption - Whether or not appellant can change it s option under clause 2 (i) of Notification No. 9/03-CE dated 1/3/2003 in the same financial year - appellant initially filed declaration in April, 2004 where exemption under Notification No. 91/03-CE was availed and Central Excise duty was paid @ 9.6% and subsequently appellant vide letter dated 1/9/2004 intimated the Department that they will be paying full rate of duty @16% - Held that:- in view o .....

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al year. Therefore, in this case option exercised in April, 2004 by the appellant will continue to hold good for the entire financial year. Appellant was not entitled to change such option exercised once and start paying duty at full rate. Therefore, observations made by first appellate authority in Order-in-Appeal to deny exemption for the entire financial year is ex facie wrong and is set aside. In such cases of interpretational disputes, Bench is of the considered opinion that no penalty prop .....

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Member And Shri P.K. Choudhary, Hon ble Judicial Member Sri K.P. Dey, Advocate & Sri S. Dey, Advocate For Appellant Sri S. Mukhopadhyay, Supdt. (A.R.) For Respondent ORDER Per Shri H. K. Thakur This appeal has been filed by the appellant against Order-in-Appeal No. 10/KOL-II/2007 dated-21/02/2007 passed by CCE (Appeal-II) , Kolkata as first appellate authority. Under this Order-in-Appeal dated 21/02/2007, first appellate authority allowed the appeal filed by the Revenue. 2. Shri K.P. Dey (A .....

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014/- under CENVAT Credit Rules. That as per clause 2 (i) of Notification No. 9/2003-CE dated 1/3/2003 option of availing exemption notification has to be exercised once and cannot be withdrawn during the same financial year. That appellant initially filed declaration in April, 2004 where exemption under Notification No. 91/03-CE was availed and Central Excise duty was paid @ 9.6%. That subsequently appellant vide letter dated 1/9/2004 intimated the Department that they will be paying full rate .....

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awn. 4. Heard both sides and perused the case records. The issue involved in the present appeal is whether or not appellant can change it s option under clause 2 (i) of Notification No. 9/03-CE dated 1/3/2003 in the same financial year. For proper appreciation of the issue the said clause is reproduced below: 2. The exemption contained in this notification shall apply subject to the following conditions namely: (i) a manufacturer who intends to avail the exemption under this notification shall e .....

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for the remaining part of the same financial year. In the present case the appellant exercised option to avail exemption by filing a declaration in April, 2004. By another letter dated 1/9/2004 appellant started paying duty at full rate and intimated the Department. In view of the provisions contained in clause 2 (i) of exemption under Notification No. 9/03-CE, option exercised once cannot be changed by the appellant in the same financial year. This issue has been decided in the case of Canara .....

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