TMI Blog2019 (1) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... ly under Section 5A of Central Excise Act. But since the Notification No. 30/2004-CE dated 09.07.2004 is a conditional notification, hence only Rule 11 (3)(i) of CCR would apply which does not mandate any such lapsing. Appeal allowed - decided in favor of appellant. - Appeal No. E/53183/2016-DB - A/53365/2018-EX[DB] - Dated:- 1-11-2018 - Mrs. Archana Wadhwa, Member (Judicial) And Mr. Bijay Kumar, Member (Technical) Ms. Rinky Arora, Advocate - for the appellant Shri S.K. Bansal, D.R. - for the respondent ORDER Per Bijay Kumar : Being aggrieved by the order No. UDZ-EXCUS-000-COM-0020-16-17 dated 20.9.2016, the appellant has filed the present appeal. 2. The appellant is engaged in the manufacture of manma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The above decision of the Tribunal was passed by one of us (Shri Bijay Kumar, M(T). 5. Ld. DR has supported the impugned order however, agreed to the fact that the said issue stand decided now in view of the above order passed by this Tribunal. 6. After going through the impugned order and appeal papers, we are of the considered that similar view has been taken by the various coordinate benches, which is as under : 3. Ld. Advocate for the appellant while relying upon the decision of Jansons Textile Processors vs. Commissioner, Central Excise ST Salem - 2018 (7) TMI 850 (CESTAT), Chennai has submitted that the present case is squarely covered under the said decision. Actually Rule 11 sub rule (1) of CCR is applicable to him. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced as under : RULE 11. Transitional provision. - . . .. (3) A manufacturer or producer of a final product shall be required to pay an amount equivalent to the CENVAT credit, if any, taken by him in respect of inputs received for use in the manufacture of the said final product and is lying in stock or in process or is contained in the final product lying in stock, if, (i) he opts for exemption from whole of the duty of excise leviable on the said final product manufactured or produced by him under a notification issued under section 5A of the Act; or (ii) the said final product has been exempted absolutely under section 5A of the Act, and after deducting the said amount from the balance of CENVAT credit, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aning or both . For example, to be able to impose both a fine and a penalty, one would need to add or both to the end of the phrase. That surely is not the case here. 5.3 Viewed in this context, it is but 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, ..................... 6. In the event, the findings and decision of the lower appellate authority to the contrary i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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