TMI Blog2018 (5) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... e exemption. Having noted that both are exemption notifications issued under exemption 5A, I am in agreement with the findings recorded by Member (Judicial) based on the ratio of various decisions of the Hon'ble Apex court regarding the choice available to the claimant when more than one exemption is available on the same goods - It is settled law that the statutory provisions have primacy over the delegated legislation as has been held by the Hon'ble Supreme Court in the case of Corporation Bank Vs. Saraswati Abharansala [2008 (11) TMI 387 - SUPREME COURT OF INDIA]. The views expressed by Member (Judicial) regarding availability of exemption under Notification 56/2002-CE to the appellant is sustainable - Since, the said issue has been settled in favour of the view expressed by Member (Judicial), the second question is not found relevant, since, the same is with reference to recovery of amount from the appellant on denying the exemption under Notification 56/2002-CE. Appellant is entitled to benefit of Notification No. 56/2002-CE dated 14.11.2002 - appeal allowed. - E/50444/2014 - Final Order No. 61994/2018 - Dated:- 26-3-2018 - Mr. Ashok Jindal, Member (Judicial) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstead of exemption from duty, the appellant cleared the impugned goods on payment of duty during the period March, 2010 to June, 2012 and availed self-credit of duty paid through PLA. As the appellant paid duty on their own, they were not entitled to claim refund by way self-credit. In these terms, the proceedings were initiated and it was concluded against the appellant that they were not required to pay duty, therefore, self-credit taken is disallowed and the same is payable alongwith interest and equivalent penalty was imposed on them. Aggrieved from the said order, the appellant is before us. 3. Learned Counsel for the appellant submits that the appellant was availing the benefit of exemption Notification No.56/02-CE dated 14.11.2002 and as per the said notification, whatever duty paid by the appellant through PLA, the same is entitled for self-credit. He submits that as per Notification No.10/10-CE although the goods were fully exempt from payment of duty. At that time also the Notification No.56/02-CE was in operation. Therefore, when two notifications are available to the appellant, the appellant is entitled to avail the benefit of any of the notifications which is more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two exemption notifications that cover the goods in question, the assessee is entitled to the benefit of that exemption notification which gives him greater relief, regardless of the fact that that notification is general in its terms and the other notification is more specific to the goods. 10. Further this issue has been examined by the Hon'ble Apex Court in the case of Share Medical Care wherein the Hon'ble Apex Court has observed as under: 16. In the instant case, the ground which weighed with the Deputy Director General (Medical), DGHS for non-considering the prayer of the appellant was that earlier, exemption was sought under category 2 of exemption notification, not under category 3 of exemption notification and exemption under category 2 was withdrawn. This is hardly a ground sustainable in law. On the contrary, well settled law is that in case the applicant is entitled to benefit under two different Notifications or under two different Heads, he can claim more benefit and it is the duty of the authorities to grant such benefits if the applicant is otherwise entitled to such benefit. Therefore, non-consideration on the part of the Deputy Director Gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quential relief. (dictated and pronounced in the court) (ASHOK JINDAL) MEMBER (JUDICIAL) Per: Devender Singh Having gone through the Final Order recorded by Ld. brother Sh. Ashok Jindal, Member (Judicial), I proceed to record a separate order. 2. In this case there are two issues:- (i) Whether the provisions of Section 5A(1A), which have primacy over notifications, were binding on the appellant and the benefit under Notification No.56/2002-CE dt. 14.11.2002 was not available because of statutory provisions? (ii) Whether in terms of Notification No.10/10-CE dt. 17.02.2010, the appellant is not required to pay duty and he has paid duty whether the provisions of Section 11A of Central Excise Act, 1944 are applicable or not? My findings on these issues are as below:- Issue No.1. 3. Essentially, the issue involved is whether the appellants had the option to pay the duty under a notification when the statute expressly prohibits the payment of duty in the case of a conditional and absolute notification. The appellants are located in J K and were availing of the benefit of Notification No.56/2002-CE dt. 14.11.2002 which allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndered nugatory and redundant if the interpretation as suggested by learned counsel for the appellant is accepted. It would mean that primacy has to be given to the Notification over the statutory provisions contained in Rule 57C .. In the present case also, following the above principle, if the question of applicability between the two notifications is examined disregarding the provisions of Section 5A(1A), the provisions of Section 5A(1A) are rendered nugatory and redundant. Hence, before coming to the question whether the appellants have a choice between Notification No.56/2002 dt. 14.11.2002 and Notification No.10/2010 dt. 27.02.2010 both of which are delegated legislation, the appellants would have to comply with the express provision of the Sub-Section (1A) of Section 5A statute, which requires that if an exemption under Sub-Section 1 of Section 5A is granted absolutely and unconditionally, the manufacturer shall not pay the duty on such goods. It is evident from the aforesaid Sub Section that if the goods are exempted unconditionally and absolutely then the manufacturer of such excisable shall not pay the duty of excise of such goods. As a consequence, in a situation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) has examined this issue in paragraph 7 and 7.1 of his order and I fully agree with the findings of the Ld. Commissioner particularly since there has been no change in plant and machinery or the manufacturing process by the appellants. In view of this, the goods are covered by the Notification No.04/2006-CE as amended by Notification No.10/2010-CE. 7. As for the penalty under Section 11AC, I find that since the question involved is of interpretation of notifications vis- -vis the provision of the statute, penalty is not justified. 8. In view of the above, the order of Ld. Commissioner (Appeals) in relation to demand of duty interest is upheld. Penalty imposed on appellant is set aside. 9. The appeal is disposed of as above. Devender Singh Member (Technical) As there are contrary views and difference of opinion between the Members, therefore, the matter be placed before the Hon ble President to refer the matter to the third member to resolve the following issue. POINTS OF DIFFERENCE (a) Whether in the facts and circumstances of the case, the appellant is entitled for the benefit of Notification No.56/02-CE dated 14.11.2002 as held by Member ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se were already discussed in the opinions recorded by both the Members and hence are not reproduced again. The admitted facts are that the appellant is located in Jammu Kashmir and is covered by area based exemption available in terms of Notification 56/2002-CE dated 14/11/2002. The products manufactured and cleared by the appellant were also eligible for unconditional exemption by another Notification 10/2010-CE dated 27/02/2010. This exemption is for all units irrespective of location. Both these exemption notifications were issued in exercise of powers under Section 5A of the Central Excise Act, 1944. The said section is for issue of notification for exempting excisable goods from whole or part of duty payable. The appellant availed exemption under Notification 56/2002-CE. The said notification exempts goods specified in the schedule from so much of excise duty payable on value addition undertaken in the manufacture of said goods by the said unit. The appellant followed the provision of said notification and paid excise duty on value addition and claimed the same as a refund as per the procedure laid down therein. 3. The dispute is when the said goods were exempted absolut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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