9911796707
TMI Blog2017 (8) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... n terms of Serial No. 3 of the Notification 23/2003-CE dated 31.03.2003 read with Notification No. 29/2004-CE dated 09.07.2004. The Revenue is of the view that the appellant did not avail any cenvat credit on inputs, therefore, they did not fulfil condition No. (iii) of the Notification No.23/2003-CE. Therefore, they are required to pay duty in terms of serial number 4 of the Notification No. 23/2003-CE dated 31.03.2003, attracting the Central Excise Duty at the rate of 30% of the Customs Duty plus cess which is applicable to similar goods when imported. In these set of facts, the show cause notice was issued to the appellant and the matter was adjudicated. Consequently, the demand of differential duty was confirmed along with interest and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicating authorities that the cotton yarn manufactured by the appellants was exempt under Notfn. No. 30/2004-CE since no cenvat credit has been availed by the appellants, is not relevant. The issue to be examined in the instant case is whether the cotton yarn, if manufactured and cleared by a unit other than export oriented undertaking, is wholly exempt from duties of Excise or chargeable to nil rate of duty or otherwise. It is seen that Notfn. No.30/2004-CE dtd 9.7.2004 provides exemption to goods falling under Chapter Heading 5204 to 5212 subject to the condition that no cenvat credit is availed on the inputs used in the manufacture of the said goods, whereas in terms of Notification No.29/2004 dtd 9.7.2004, the rate of duty applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Nos. viz. 2, 3 & 4. However conditions for availing the benefit are different. Sr. No. 2 provides that excise duty leviable will be 50% i.e. 50% of the aggregate duties of Customs. This is of course subject to specified condition (which is applicable for Sr. Nos. 3 and 4 also) which is not matter of dispute. As far as Sr. Nos. 3 and 4, both are applicable only when the goods are produced or manufactured wholly from the raw materials produced or manufactured in India. Sr. No. 3 is applicable if such goods manufactured by a unit (other than 100% EOU) are chargeable to some duty (other than NIL rate or total exemption) while Sr. No. 4 is applicable if such goods are chargeable to NIL rate or are totally exempt. Thus for applying Sr. No. 3 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 8 or 4% under Notification No. 29/2004-C.E., dated 9-7-2004 and not NIL rate under Notification No.30/2004-C.E., dated 9-7-2004. Thus Sr. No. 4 of the Table annexed to Notification No. 23/2004-C.E., dated 9-7-2004 will not be applicable in appellant's case even if goods are manufactured or produced from the raw material produced or manufactured in India. However, appellant would be entitled to the rate prescribed in Sr. No. 3 provided appellant is able to satisfy the condition that the goods are manufactured or produced from the raw material produced or manufactured in India." And this Tribunal held that the assessee is not required to pay the differential duty. In view of the above decision, we hold that the appellant is not requ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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