TaxTMI 
TaxTMI 
2024 (7) TMI 616
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....manufacturing activities and cleared the goods without payment of duty. Since, the appellant had opted for availing cenvat credit on inputs and cleared the final products on payment of duty for the month of April 2006, the question of availing exemption for the remaining months of the same financial year was not as per the provisions applicable under Notification No.8/2003-CE dated 01.03.2003. Accordingly, notice was issued and the authorities below confirmed the demands for the clearances made for the period May 2006 to March 2007. Hence, this appeal. 3. The learned Chartered Accountant on behalf of the appellant submitted that he had not opted for payment of duty as is required in terms of Para 2 (i) and (ii) of the Notification No. 8/2003-CE dated 01.03.2003 and therefore, payment of duty by mistake for the month of April 2006 should not deny them the benefit of the Notification No.8/2003-CE dated 01.03.2003. He relied on the following decisions: Mistry Brothers vs. Commissioner of Central Excise: 2006 (200) ELT 350 (Tri.-Mumbai) Perfect Springs Pvt. Ltd. Vs. Commissioner of Central Excise, Ghaziabad: 2004 (163) ELT 384 (Tri.-Del.) Salvi Chemicals I....
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....sions of the said Notification are reproduced below: Notification No. 8/2003 - Central Excise 1st March, 2003 In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excise Act, 1944 (1 of 1944) (herein after referred to as the Central Excise Act) and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 8/2002-Central Excise, dated the 1st March, 2002, published in the Gazette of India vide number G.S.R. 129(E), dated the 1st March, 2002, the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts clearances, specified in column (2) of the Table below (hereinafter referred to as the said Table) for home consumption of excisable goods of the description specified in the Annexure appended to this notification (hereinafter referred to as the specified goods), from so much of the aggregate of, - (i) the duty of excise specified thereon in the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) (herein after referred to as the First Schedule); and (ii) the special duty of excise specified thereon i....
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....pay duty on the final products and accordingly, will be eligible for the benefit of CENVAT credit on the inputs used in the manufacture of the final products. Such an option cannot be withdrawn during the remaining part of the financial year. Therefore, having paid duty in the month of April 2006 by availing CENVAT credit, the question of availing the benefit of exemption for the remaining part of the year did not arise. As rightly argued by the Revenue, the Tribunal in the case of Cybele Herbal Laboratories (P) Ltd. vs. Commissioner of C.EX., Calicut (supra) held as follows: "6. We have gone through the records of the case carefully. While claiming refund, the appellants have narrated the circumstances under which they paid normal rate of duty of 16% for their clearance even though they were entitled for the SSI Exemption. In other words, their action of not availing the SSI exemption is on account of a misconception of law and not due to a conscious opting not to avail SSI Exemption. In these circumstances, we are of the view that the appellants would not be hit by Para 2(i) of Notification 8/2001. However, as they had availed Cenvat, they would be rightly entitled for t....
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....and there was no suppression of facts as the same was intimated to the department. However, another show-cause notice dated 22.09.2009 was issued on the same audit note referred above dated 20.03.2007 for having availed the benefit of Notification No.8/2003-C.E dated 01.03.2003, which has resulted in the impugned order. From the Order-in-Original No.4/2008 dated 19.08.2009, it is very clear from the facts incorporated therein that Revenue was aware of the fact that assessee was availing CENVAT credit under Cenvat Credit Rules, 2004 and concession as per the Notification No.8/2003-C.E dated 01.03.2003. On the very same audit note, a second show-cause notice cannot be issued alleging irregularity of availing the above Notification No.8/2003-C.E dated 01.03.2003 and also to invoke suppression once again which has already been set aside by the original authority in the Order-in-Original No.04/2008. The appellant has rightly argued that the first show-cause notice 04.11.2008 which had already been settled vide Order-in-Original No.04/2008 dated 19.08.2009 based on the reply submitted by them for the entire audit observations cannot be reopened by issuance of another show-cause notice af....
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....aragraph 8, which refers to certain documents, based on which, it came to be issued. All those documents are all prior to issuance of the first show cause notice dated 14-8-2001. Thus, on the date when the second show cause notice dated 27-3-2002 was issued, the Commissioner of Central Excise had no fresh material to justify as a cause of action for the issuance of the second show cause notice dated 27-3-2002. In fact, there is no reference to the Order-in-Original passed by him dated 7-1-2002 nor the proceedings, which were initiated earlier. In fact, that should have been specifically referred to in the second show cause notice, which is an inherent error and it will vitiate the second show cause notice dated 27-3-2002. 25-29. ............. 30. At the risk of repetition, we wish to point out that there was only one inspection of the factory on 5-9-2000 followed by the special stock taking conducted on 25-10-2000, 12-12-2000 and 14-12-2000 and this was the basis for the entire proceedings. Therefore, the Tribunal fell in error in stating that the second show cause notice dated 27-3-2002 was entirely different, as it related to excess stock. The Revenue cannot dra....