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of <h1>CESTAT grants waiver of pre-deposit, affirms appellants' right to choose duty rate entries</h1> <h3>SRIBA AGRO LIMITED Versus COMMISSIONER OF CUS. & C. EX., GUNTUR</h3> SRIBA AGRO LIMITED Versus COMMISSIONER OF CUS. & C. EX., GUNTUR - 2009 (237) E.L.T. 752 (Tri. - Bang.) Issues:Interpretation of Central Excise Tariff Act and Notification for duty rate on Refined Edible Oils, applicability of Chapter Note 4 to Chapter 15, choice between duty rate entries, recovery of Cenvat credit, pre-deposit of duty and penalty.The judgment by the Appellate Tribunal CESTAT, Bangalore, involved a case where the appellant was required to pre-deposit a substantial amount as duty and penalty. The appellant procured duty paid Refined Edible Oils in bulk and repacked them into retail packs, a process considered as manufacturing under Chapter Note 4 of Chapter 15 of the Central Excise Tariff Act. The dispute arose regarding the applicable duty rate under Notification No. 6/2002-C.E., with two entries, 244(B) at Rs. 1 per kg and 244(C) at NIL. The Revenue contended that the appellants should have availed entry 244(C) instead of 244(B) to recover Cenvat credit, leading to a recovery action against the appellants. The appellants argued that they had the choice between the two entries and could avail either. The Tribunal, after hearing both sides, found that the appellants had a strong case. They noted that there was no provision preventing the appellants from availing the duty rate under 244(B) of the Notification. Consequently, the Tribunal ordered a full waiver of the pre-deposit of duty and penalty until the appeal's disposal, allowing a stay application and scheduling the matter for further hearing on a specified date.In the judgment, the Tribunal considered the interpretation of Chapter Note 4 to Chapter 15 of the Central Excise Tariff Act and Notification No. 6/2002-C.E. regarding duty rates on Refined Edible Oils. The Tribunal analyzed the Revenue's argument that the appellants should have availed a different duty rate entry to recover Cenvat credit, leading to a recovery action against the appellants. The Tribunal carefully examined the provisions and found that the appellants had the discretion to choose between the duty rate entries provided in the Notification. They emphasized that there was no indication in the Notification or any other provision restricting the appellants from availing the duty rate mentioned in entry 244(B). This analysis formed the basis for the Tribunal's decision to grant a full waiver of the pre-deposit of duty and penalty imposed on the appellants until the appeal's final disposal, allowing the matter to proceed for further hearing on a specified date.The judgment highlighted the importance of understanding and applying the provisions of the Central Excise Tariff Act and relevant Notifications in cases involving duty rates and Cenvat credit. It underscored the principle that when there are multiple duty rate entries available to an assessee, the choice of entry lies with the assessee, unless expressly restricted by the provisions. The Tribunal's decision to grant a waiver of the pre-deposit of duty and penalty was based on a prima facie assessment that the appellants had a strong case and that there was no explicit restriction preventing them from availing the duty rate mentioned in the relevant entry of the Notification. This interpretation of the legal provisions ensured a fair consideration of the appellant's position and upheld their right to choose the applicable duty rate entry, leading to a favorable outcome in the judgment.
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