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596 EXCISE LAW TIMES [ Vol. 373

in favour of the Revenue in the context of the very same notifications which are
subject matter of the present writ petition. He drew my attention to the Para-
graph 9.2 which is reproduced below :
“9.2. The sub-rule (3) (i) & (ii) of Rule 11 of Cenvat Credit Rules,
2004 clearly stipulates that if a manufacturer opts for exemption from
whole of duty of excise leviable on the said final product under a Notifica-
tion issued under Section 5A of the Act or the said final product has been
exempted absolutely under Section 5A of the said Act, he shall be required
to pay an amount equivalent to the Cenvat credit taken by him in respect of
inputs received for use in the manufacture of the said final product and is
lying in stock or in process or is contained in the final product lying in the
stock and after deducting the said amount from the balance of Cenvat cred-
it, if any lying in his credit, the balance if any still remaining shall lapse and
shall not be allowed to be utilized for payment of duty on any other final
product whether cleared for home consumption or for export or for pay-
ment of Service Tax on any output service, whether provided in India or
exported. The Notification No. 30/2004-C.E. provides for exemption from
whole of duty and therefore respondent’s case is covered under sub-rule (3)
(i) of Rule 11 and not under sub-rule (3) (ii). Commissioner (Appeals) has
erred in not considering the word ‘or’ after sub-rule (3) (i). Respondent has
also referred to provision of sub-rule (3) (ii) and ignored the provisions of
sub-rule (3) (i) of Rule 11. As such Government finds force in pleadings of
the applicant department, and holds that the orders passed by original au-
thority are legal and proper, and do not suffer with any legal infirmity.”
8. The Learned Counsel for the Revenue further submits that since the
matter was remitted back by the First Respondent to await the Order of the
CESTAT in Valli Textiles case supra possibly an order would also have been
passed and therefore the present writ petition is infructuous. However, there are
no documents to substantiate the same at this point of time. The Learned Coun-
sel for the petitioner also submits that no further orders have been passed pursu-
ant to the remand.
9. I have considered the arguments advanced on behalf of the petition-
er and the respondents.
10. The petitioner has exported 100% Organic Cotton Yarn which are
classifiable under sub-heading No. 5205.11 of the Central Excise Tariff Act, 1985.
There are two notifications exempting the said Organic Cotton Yarn. The peti-
tioner claims to have paid excise duty at a concessional rate in terms of Notifica-
tion No. 29/2004-C.E., dated 9-7-2004 at 4%. On the other hand, it is the conten-
tion of the respondents that goods are exempted in terms of Notification No.
30/2004-C.E., dated 9-7-2004 and therefore the question of petitioner paying
excise duty by debiting their Cenvat account from capital goods was itself incor-
rect and therefore there is no question of rebate to be granted to the petitioner.
11. The Learned Counsel for the respondents further submitted that the
exported goods being exempt from payment of excise duty under a notification
issued under Section 5A of the Central Excise Act, 1944, the question of the peti-
tioner paying duty by debiting Cenvat Account to claim rebate under Rule 18 of
the Central Excise Rules, 1944 does not arise.

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