TMI Blog2020 (6) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... nput, input in process and input contained in final products whatever balance is left shall lapse only when the Notification is unconditional. Appeal dismissed - decided against Revenue. - Excise Appeal No. 52906 of 2019 [DB] - Final Order No. 50637/2020 - Dated:- 20-2-2020 - HON BLE MR. RAMESH NAIR, MEMBER (JUDICIAL) AND HON BLE MR. RAJU, MEMBER (TECHNICAL) Shri Hemant Bajaj And Ms. Sukriti Das, Advocates for the Appellant Shri O.P. Bisht, Authorised Representative for the Respondent ORDER RAMESH NAIR: The respondents are engaged in the manufacture of polyester yarn falling under Chapter 55 of the Central Excise Tariff Act, 1985. They have opted for exemption Notification No.30/2004-CE dated 09.07.2004 w.e.f. 1st April, 2016. In compliance to Rule 11 (3) (i) of the Cenvat Credit Rules, 2004, they have reversed the Cenvat Credit amounting to ₹ 54,85,417/- attributable to input, input contained in WIP and finished goods in the stock. After reversal of Cenvat Credit, there was some accumulated balance of CENVAT Credit was available. A show cause notice was issued proposing the demand of CENVAT Credit which was lying in balance even after afore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the respondent has opted for exemption Notification No.30/2004-CE, which carries the following conditions:- Provided that nothing contained in this Notification, which shall apply to the goods in respect of which credit of duty on inputs has been taken under the provisions of CENVAT Credit Rules, 2004. 6. As per the above condition, the exemption Notification No. 30/2004-CE is not an absolute exemption. The provision for lapsing of credit is provided in Rule 11 (3). (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, if any, lying in his credit, the balanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Delhi has taken the following view:- 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. It is impressed upon that decision under challenge has wrongly relied upon Rule 11 sub rule (2) of CCR while denying utilization of the unutilized credit with the appellant. Order is accordingly prayed to be set aside and appeal is prayed to be allowed. 4. Ld. DR while justifying the impugned order has impressed upon findings in para 21.2 thereof. It is impressed upon that the adjudicating authority has clearly explained about the applicability of Rule 11(2) in the present case. Appeal is accordingly prayed to be rejected. 5. After hearing both the parties, we are of the opinion that in the present case the appellant has opted for exemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined whether the alternatives separated by or are not mutually exclusive. The Courts may construe or as and , only if they find from the context that the wrong word must have been used. [Ranchhoddas Atmaram v. UOI, AIR 1961 SC 935; Firoj Farukee v. State of West Bengal, AIR 1972 SC 2141]. However, in respect of the sub-rule 3 (i) and subrule 3 (ii) ibid, there should not be any such confusion or doubt, since those two sub-rules are separated not by just a particle or but also by a semicolon (;), thus creating an additional wall for conveying mutual exclusivity between the two sub rules. There is also no basis for suggesting that the use of or between these sub-rules conveys the meaning 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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