2013 (12) TMI 456

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....tion (Sl.No.1-5). After considering the submission of both sides, we recall order dt.8.1.2013 and all the stay applications are restored to their original numbers. MISC petitions filed by the applicants are allowed. 2. Since we are taking up the stay petitions for disposal, the EH application for hearing stay petition filed by M/s.Bannari Amman Spinning Mills Ltd. is dismissed as infructuous. 3. Appeal No.E/395/2011 filed by M/s. Bannari Amman Spg. Mills Ltd. is against Order-in-Original No.43/2011-CE dt. 31.3.2011 and all other appeals are arising out of a common Order-in-Appeal No.137-141/2012 dt. 26.6.2012. 4. Heard both sides and perused the records. 5. The applicant filed these applications for waiver of predeposit of duty ....

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.... of Cenvat Credit Rules, 2004. It has been alleged that during the said period, cotton yarn not containing any other textile material was fully exempted from duty by notification 58/08 and therefore, in terms of sub-section (1A) of Section 5A of the Central Excise Act, they are not eligible to pay duty vide Notification No.59/08. Adjudicating authority confirmed the demand of duty along with interest. Commissioner (Appeals) modified the demand of duty in so far as the applicants are entitled to avail balance 50% capital goods credit of duty paid prior to 7.12.2008 and they are not entitled to avail cenvat credit of duty paid on inputs/capital goods during the exempted period from 07.12.2008 to 06.07.2009 and directed the adjudicating author....

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....9/08 would be negatived which is not the intention of the legislature. 9. Ld. AR on behalf of Revenue reiterates the findings of the lower authorities. He draws the attention of the Bench to the wordings of section 5A (1A). He submits that in the present case, both the notifications are unconditional and notification No.58/08 granted exemption absolutely. Section 5A (1A) would apply. It is also contended that if there is any dispute, the section will prevail over the provisions of notification.. He also relies upon Board's circular (supra). He submitted that the Board has also discussed this matter with Law Ministry and therefore the applicants should be directed to predeposit entire amount of duty. 10. After hearing both sides and on....