- (1.) Challenge in this appeal filed u/s. 35L of the Central Excise Act, 1944 (in short the 'Act') is to the legality of judgment rendered by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (in short the 'Tribunal').
(2.) The controversy lies within a very narrow compass. 2.1 Appellant is engaged in the manufacture of paper and paper board falling in Chapter 48 of the Tariff. Notification No. 6/2000-CE dated 1.03.2000 was issued whereby the product manufactured by the appellant was exempted from payment of duty during the month of March, 2000. Appellant availed credit as well as cleared goods under the said exemption notification. Thereafter, it suo motu reversed the credit of Rs. 1,92,365.00 to avail the exemption. It deposited the duty on 30.08.2000 for the month of March, 2000 and also applied for refund of the Modvat credit of Rs. 1,92,365.00 which was already reversed by it. The claim of refund was allowed by order dated 13.12.2001 passed by the Assistant Commissioner. Thereafter, the appellant again suo motu reversed the Modvat credit and filed the refund claim on 12.07.2001 in respect of the duty paid on 30.08.2000 for the month of March, 2000, claiming benefit under the aforesaid notification No. 6/2000-CE. The claim for refund was rejected by the Assistant Commissioner. An appeal was filed before the Commissioner (Appeals) who also dismissed the appeal. An appeal was filed before the Tribunal, which was dismissed by the Tribunal by the impugned judgment. 2.2 Contention of the appellant before the Tribunal was that it had already reversed the credit taken during the month of March, 2000 and, therefore, it is entitled for the benefit of Notification and duty paid on 30.08.2000 by it was to be refunded. Reliance was placed on a decision of this Court in Orissa Extrusions V/s. Collector of Central Excise, Bhubaneswar, where this Court while interpreting the provisions of the Notification no. 180-CE of 1988 observed that it cannot be held that exemption notification will be inapplicable insofar as it is not in accordance with R. 57C of the Central Excise Rules, 1944 (in short the 'Rules'). 2.3 The contention of the Revenue was that the appellant during the month of March, 2000 availed the credit and also cleared the goods at nil rate of duty under Notification No. 6/2000-CE. As the appellant cleared the goods and availed the credit therefor, it is not entitled for the benefit of exemption notification. The contention of the Revenue was that thereafter the appellant reversed the credit and subsequently paid the duty for the month of March 2000 and filed the refund claim in respect of the credit reversed by it and the refund was allowed. As the appellant availed the benefit of credit in respect of the inputs for the month of March 2000, therefore, it is not entitled for benefit of Notification. 2.4 The Tribunal held that the decision relied upon by the appellant was not applicable and in any event it having claimed refund and credit which was allowed it cannot again ask for exemption from payment of duty and the claim for refund of duty was rightly rejected.
(3.) In support of the appeal, learned counsel for the appellant submitted that the Tribunal was not justified in holding that the entitlement to exemption under the Notification in question was dependent upon whether the assessee had availed Modvat credit of input duty under R. 57A of the Rules. It is pointed out that the Notification which was issued in exercise of powers conferred by sub-sec. (1) of Sec. 5A of the Act granted exemption in respect of excisable goods of the description specified in Column (3) of the table read with concerned list appended to the Notification. The exemption was subject to relevant conditions specified in the Annexure to the Notification and referred to in the corresponding entry in Column (6) of the table. It is further pointed out that so far as the item manufactured by the appellant is concerned, the condition applicable was condition No. 15 which reads as follows: "15. (1) This exemption shall apply only to the paper and paperboard cleared for home consumption from a factory- (a) during the period from 1.03.2000 to 31.03.2000, upto first clearances of an aggregate quantity not exceeding 210 Metric Tonnes; and (b) on or after the 1.04.2000, in any subsequent financial year, upto first clearances of an aggregate quantity not exceeding 2500 Metric Tonnes; (2) The exemption shall not be applicable to a manufacturer of the said goods who avails of the exemption under the notification of the Government of India in the Ministry of Finance (Department of Revenue) No.8/99-Central Excise, dated the 28.02.1999 published in the Gazette vide number G.S.R. 170(E) dated the 28.02.1999, 9/99-Central Excise, dated the 28.02.1999 published in the Gazette vide Number G.S.R. 171(E), dated the 28.02.1999, published in the Gazette vide 8/2000-Central Excise, dated the 1.03.2000 and 9/2000- Central Excise, dated the 1.03.2000".;