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2018 (7) TMI 850

Transitional provisions - CENVAT Credit - requirement of reversal of credit while opting exemption - Department took the view that even this cenvat credit balance amount should lapse in view of the provisions of Rule 11 (3) (ii) of Cenvat Credit Rules, 2004 - Held that:- Sub-rule (3) (i) ibid will apply when the assessee opts for an exemption from the whole of duty of excise leviable under a notification issued under Section 5A of the Central Excise Act, 1944. Sub-rule (3) (ii) ibid will be .....

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able whatsoever, under sub-rule 3 (ii) ibid, for the assessee to avail. - The impugned order then cannot sustain and will require to be set aside - appeal allowed - decided in favor of appellant. - Appeal No. E/623/2010 - Final Order No. 42004 / 2018 - Dated:- 11-7-2018 - Hon ble Shri Madhu Mohan Damodhar, Member ( Technical ) And Hon ble Shri P. Dinesha, Member ( Judicial ) Shri M.Saravanan, Consultant For the Appellant Shri S. Govindarajan, AC (AR) For the Respondent ORDER Per Madhu Mohan .....

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der Rule 15 (2) of CCR. In adjudication, the original authority vide an order dt. 29.10.2009 confirmed the said proposals and also imposed equal penalty under rule 15 (2) of CCR. In appeal, the Commissioner (Appeals) vide impugned order dt. 19.07.2010 set aside the imposition of penalty, however upheld the remaining part of the order of original authority. Hence the appellants are before this forum. 2. Today when the matter came up for hearing, on behalf of the appellant, Ld. Consultant Shri M. .....

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lause (i) and clause (ii) of sub-rule (3) of Rule 11 of CCR and has come to a clear finding that in all the situations surplus credit available with the assessee will be required to be lapsed. 4. Heard both sides and have gone through the facts. 5.1 The core issue that comes up for decision is whether the transitional provisions contained in sub-rule (3) of Rule 11 will be applicable to both sub-rules 3 (i) and 3 (ii). For better understanding, the relevant provisions relating to manufacturers a .....

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any output service, whether provided in India or exported. 5.2 It is pertinent to note that the sub-rule 3 (i) and sub-rule 3 (ii) are separated by a semicolon ( ; ) followed by the disjunctive or‛. The use of semicolon ( ; ), the punctuation mark is to separate two closely related independent clauses. Or‛ is a particle used to connect words, phrases or classes representing alternatives [ J. Jayalalitha Vs UOI - (1999) 5 SCC 138 ]. Only if the phrasing of the legal provision is such .....

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ut obvious that the legislature intended the said sub rules 3 (i) and 3 (ii) to be two distinct and separate alternatives, with distinctively different qualifying factors and conditionalities. 5.4 In sub rule 3 (i), the assessee has an option to avail of a particular notification or otherwise; when such assessee takes such option, he will be required to pay an amount equivalent to cenvat credit, if any, taken by him in respect of inputs received for use in the manufacture of the final product an .....

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s in sub-rule 3 (ii) ibid, there is no such option available to the assessee and the absolute exemption that may have been brought forth under Section 5A ibid would apply unilaterally to the related final product manufactured by the assessee. 5.7 It is important to note that the law makers have not incorporated the requirement of payment of cenvat credit equivalent to credit taken by the assessee in respect of inputs lying in stock or in process in sub rule 3 (ii) ibid. In our view, this is beca .....

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