- (1.) This order shall dispose of CEA Nos. 2 and 4 of 2011 as according to learned counsel for the parties, the common questions of law and facts are involved therein. For brevity, the facts are being extracted from CEA No. 2 of 2011.
(2.) Cea No.2 of 2011 has been preferred by the revenue under Section 35G of the Central Excise Act, 1944 (in short "the Act") against the order dated 28.4.2010 (Annexure A-4) passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as "the Tribunal"). The appeal was admitted for consideration of substantial questions of law as proposed in para 4 of the appeal which are as under:- i) Whether Tribunal has erred in law by not appreciating the language of the relevant subpara (iii) of para 2 of Notification No. 8/2003- C.E., dated 01.03.2003, which debars the manufacturer from taking credit of duty paid on inputs, if manufacturer opts for availing of the benefit under Notification No. 8/2003-C.E., dated 01.03.2003 ii) Whether the Tribunal was correct in distinguishing the judgment of Hon'ble Supreme Court in the case of Commissioner of Central Excise, Ahmedabad vs. M/s Ramesh Food Products, 2004 174 ELT 310
(3.) The facts, in short, necessary for adjudication of the instant appeal as narrated therein may be noticed. The respondent availed exemption upto Rs. 100 lacs under notification dated 1.3.2003 for manufacture and clearance of their own goods and simultaneously availed and utilized Cenvat/Modvat credit qua other branded goods manufactured and cleared by them on payment of duty. A show cause notice dated 11.1.2007 (Annexure A-1) was issued to the assesseerespondent after denial of SSI exemption by raising demand of duty along with interest and penalty. The adjudicating authority vide order dated 29.6.2007 (Annexure A-2) confirmed the demand of duty amounting to Rs. 15,73,174/- under Section 11A of the Act along with interest. Feeling aggrieved, the assessee filed an appeal before the Commissioner (Appeals) whereas the revenue challenged the action of the adjudicating authority refraining from imposing any penalty under Rule 25 of the Central Excise Rules, 2002 (in short "the 2002 Rules"). Both the appeals were disposed of vide order dated 28.1.2008 (Annexure A-3) whereby the Commissioner (Appeals) upheld the order of the adjudicating authority and also imposed penalty of Rs. 10,000/- under Rule 25 of the 2002 Rules and modified the order to that extent. The respondent assailed the order, Annexure A-3, in appeal before the Tribunal. The Tribunal vide order dated 28.4.2010 (Annexure A-4) allowed the appeal and set aside the order, Annexure A-3. Hence, the present appeals.;