2019 (9) TMI 1009

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....d counsel for the petitioners, Mr.R.Sivaraman and the learned standing counsel for the respondents, Mr.Aravindan have been heard in full and a common order is passed, bearing in mind the commonality of the issue involved. 3. The petitioner is a manufacturer and exporter of yarn in terms of Chapter 52 of the first Schedule to the Central Excise Tariff Act, 1985. 4. The Central Board for Excise & Customs (CBEC) had issued a Notification bearing No.29/2004-CE, dated 09.07.2004 granting exemption in regard to the payment of duty on yarn. Simultaneously, Notification No.30/2004-CE was also issued on 09.07.2004 which prescribed the rate of duty at 4% along with rebate. On 17.12.2008, Notification No.29/2004 was amended by Notification No....

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....E., dated July 09, 2004 as further amended vide Notification No.59/2008-C.E., dated December 07, 2008. The fact is not being disputed by the respondents that the petitioner availed Notification No.59/2008 for clearance made to export and thereafter filed various rebate claims. It is, thus, an undisputed fact that the petitioner on final products discharged the duty liability by availing the benefit of Notification No.59/2008 and as has already been noted in the record, it has reversed the amount of Cenvat Credit taken by it on the inputs used for manufacturing of such products. Thus, when the petitioner is not liable to pay duty in light of the absolute exemption granted under Notification No. 29/2004 as amended by Notification No.....

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....formations as well as trade to clarify the ambiguity arising out of simultaneous prevalence of two exemption Notifications namely 29/2004- C.E., dated 9-7-2004 as amended by notification No.58/2008-C.E., dated 7-12-2008 and another notification 59/2008-C.E., dated 7-12-2008. The period of dispute is from 7-12-2008 to 6-7-2009. During this period while one Notification No. 29/2004-C.E., as amended granted full exemption to certain items of Textile Sector without any condition, the second notification 59/2008-C.E., prescribed a concessional rate of duty of 4% on these items, with the benefit of Cenvat Credit. 2. The dispute was with regard to whether an assessee can avail the benefit of either of the above said two notificat....

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....s imposed thereunder. The aforesaid Notification reads as follows: ALL MEMBER MILLS: Sub: Fiscal Stimulus package - central excise duty - Reg., Ref: Association Circular No.95/2008 dated December 08, 2008 <><><> Member mills may be aware that the Central Government had amended Notification No.29/2004-C.E., dated 09.07.2004 by way of Notification No.58/2008-CE dated 07.12.2008 thereby reducing the rate of duty on cotton yarn and pure cotton fabrics to zero percent from 4 per cent. A query therefore arose with regard to the utilisation of the accumulated credit. The validity of Notification No.59/2008-CE dated 07.12.2008 was also questioned. In reply to the Association&#39;s query as to whether the textile mills ....