TMI Blog2000 (6) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... d from duty by Notification 67/95, dated 16-3-1995. The Commissioner, in the impugned order, had held this not to be permissible, on the ground that the exemption notification is, as if, contained in the Act itself, and that therefore, the manufacturer had no choice but to claim the exemption. 2When the. matter first came up, advocate for the appellant indicated his intention to rely on the decision of the Tribunal in Everest Convertors v. CCE, Calcutta - 1995 (80) E.L.T. 91 and other decisions following, holding that the manufacturer to elect to avail or not to avail of the exemption notification at his will, and that therefore, the exemption notification cannot be forced upon him. It appeared possible at that stage, that reconsideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee had the right to pay duty on exported goods and thereafter, the purchase of such goods was entitled to take modvat credit of the duty so paid. 4. There have also been a number of the decisions of this Tribunal have been passed, holding that in the light of the contents of the circular of the Board based on which a number of trade notices had been issued in 1988 by the Collectorate advising the assessee notwithstanding existing of an exemption notification, the right of the assessee to pay duty on the goods and thereafter avail the duty so paid, the department cannot take the view that duty ought not to have been paid and credit not taken. These decisions did not go into the merits of the issue, but merely held that, on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t taken away or deleted by issue of an exemption notification. It continues to exist. The exemption notification is thus in the nature of a benefit conferred upon the assessee. That being so, the assessee has a right to avail or not to avail of the benefit. Therefore, the assessee may or may not pay duty. Once the duty is paid, it is eligible to be taken as modvat credit. The departmental representative's answer was essentially to assail the decision of the Tribunal in Everest Convertors v. CCE saying that it proceeded mainly on the basis that the opinion of the Ministry of Law was incorrect, and that once, the legislature has granted an exemption, that exemption is binding. 6. It is difficult for us not to affirm, as we have held, and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stries Ltd. v. ACCE - 1987 (30) E.L.T. 224. It would then follow that when there is an exemption granted to an article, there are two rates of duty leviable. One, a rate prescribed by the statute, and secondly the rate granted by exemption notification, which in any case can not be equal to or more than the duty prescribed in the statute and always has to be less including nil. 9.In this understanding of the matter, if an assessee choose not to avail of an exemption notification, it cannot be said that he is in effect exercising an option to avail or not to avail the parliamentary will. It is the same legislature which has provided him two rates of duty one of which he is required to follow. 10.Our reservation regarding the correctness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e be belated. Where an assessee is clearly unable to comply with the conditions of the notification, it is evident that that notification cannot be forced upon him. The same position would hold true, in case of an assessee who avail although wrongly that he may not be able to fulfil the conditions of the notification. It is settled law that an exemption has to be claimed and that the burden of proving that he falls within the exemption falls upon the person who claims it. In such cases therefore we must independently of our earlier reasoning come to the conclusion that there is always an element of choice in availing of an exemption notification. 14.We are reluctant to accept the argument that because finally the effect is "revenue neutra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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