TaxTMI 
TaxTMI 
2018 (5) TMI 665
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.... 2. The appellant had chosen to pay duty in terms of notification No.9/03-CE dt.1.3.2003 and as such they were availing the credit were paying duty @ 60% of the tariff rate on their final products It so happened that Notification No.09/03-CE was rescinded with effect from 6.4.2005. As the appellant did not realise the rescinding of the said notification, they continued to avail credit and discharge duty @ 60% of the normal rate during 1.4.2005 to July, 2006. 3. Subsequently, a show cause notice was issued to them on 12.06.2007 raising the demand from 1.4.2005 to July, 2006, alleging that with the rescinding of Notification No.9/03-CE, concessional rate of duty was not available and they should have paid full rate of duty. The show cause notice did not cover prior period probably on the ground of time bar as the appellants were filing the declaration with the Revenue and also providing other intimations. It may not be out of place to mention that as the appellant was paying duty at the concessional rate during the period under intimation to the Revenue and this fact was in the knowledge of the Revenue, they were never advised by the Revenue about rescinding of the notification in q....
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....ng his first clearances at the normal rate of duty. Such shall not be withdrawn during the remaining part of the financial year." 9. As it is be become clear that the option was available to the assessee to avail exemption contained in the notification and to pay normal rate of duty on the goods cleared by them. It becomes clear that if the assessee does not want to avail the benefit of said the Notification no.8/030CE, it could opt out the same. There was no condition for opting for the notification though the same provided for opting out of the notification. As the appellant paid duty on the final products in terms of notification No.9/03-Central Excise and when Notification No.09/03-CE was not available, having been rescinded from statuary book, the question of payment of duty under notification NO.9/03-CE does not arise. There was no other notification holding the field and as such the notification which is available to the assessee was only notification No.8/03-CE, in the absence of notification No.9/03-CE. There is no evidence indicating that the appellant opted out of notification No.8/03-CE and as such, should have paid the normal rate of duty. 10. When the differential d....
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.... available with the appellant. It can be concluded that no credit stands availed by them so as to benefit them at any point of time. It will amount to Revenue neutral situation as credit availed by the appellant would become nil and as such the condition of the Notification No.8/03-CE, stands fulfilled by the assessee. Instead of raising differential duty, at full rate of duty, the Revenue should have extended the benefit of Notification No..8/03-CE to the assessee. As such, we are of the view that confirmation of duty against the assessee along with confirmation of interest and imposition of penalty is not warranted. Accordingly, the impugned order is set aside and the appeal is allowed with consequential relief. ( Dictated & pronounced in the open court ) 12. Having gone through the order of the Ld. Sister Member (J), I pass a separate order. 13. The brief facts of the case are that the appellant who manufacture pesticides, were working under small scale scheme during the financial year 2006-07. From their quarterly returns, it was found that the appellant had paid Central excise duty @ 9.6% instead of tariff rate of duty of 16% throughout the financial year. Since the b....
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.... contained in this notification and instead pay the normal rate of duty on the goods cleared by him. Such option shall be exercised before effecting his first clearances at the normal rate of duty. Such option shall not be withdrawn during the remaining part of the financial year; (ii) while exercising the option under condition (i), the manufacturer shall inform in writing to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise with a copy to the Superintendent of Central Excise giving the following particulars, namely :- (a) name and address of the manufacturer; (b) location/locations of factory/factories; (c) description of inputs used in manufacture of specified goods; (d) description of specified goods produced; (e) date from which option under this notification has been exercised; (f) aggregate value of clearances of specified goods (excluding the value of clearances referred to in paragraph 3 of this notification) till the date of exercising the option; (iii) the manufacturer shall not avail the credit of duty on inputs under rule 3 or rule 11 of the CENVAT Credit Rules, 2002 (herein after referred to as the said rules), p....
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....Bench for verification. In the present case, it is an admitted fact that the Cenvat credit has already been availed and utilized as well. Hence, the said case law is not applicable to the facts of the present case. 21. As far as the penalty is concerned, in a case like this where it seems to be a mistake that was bonafide, probably because they were availing concessional rate of duty under Notification No.9/03- CE in previous year, the penalty would not be justified. Hence, penalty is set aside. 22. In view of foregoing, demand of duty and interest are upheld. However, penalty is set aside. (Devender Singh) Member (Technical) 23. As there are contrary views and difference of opinion between the Members, therefore, the matter be placed before the Hon'ble President to appoint the Third Member for resolving the following issues:- DIFFERENCE OF OPINION (1) Whether in view of Revenue neutral situation, the benefit of Notification No.8/03-CE should be extended to the assessee and the appeal be allowed, as held by the Member (Judicial); or (2) Whether in view of the appellant not fulfilling the condition of Notification No.8/03-CE, demand of duty and interest be upheld, as held b....