Page 123 - GSTL_3rd September 2020_Vol 40_Part 1

2020 ] COMMISSIONER OF CENTRAL EXCISE & CGST, ALWAR v. ORIENT SYNTEX 57
on the ground that in terms of Rule 11(3)(ii) the balance, if any, still remaining
after reversal of credit on input, input in process, and contained in final products.
The said balance shall also lapse. The adjudicating authority confirmed the de-
mand. Being aggrieved by the Order-in-Original, the appellant filed appeal be-
fore the Commissioner (Appeals). Learned Commissioner... relying on various
judgments held that the lapsing of balance credit is applicable only in case the
exemption Notification is absolute exemption and not conditional. Accordingly,
the appeal of the respondent was allowed. Therefore, Revenue filed the present
appeal.
2. Learned Authorised Representative on behalf of the Revenue-
appellant submits that in terms of Rule 11(3)(ii), there is a clear provision for
lapsing on balance credit. He took support from this Tribunal judgment in the
case of Supertex Industries Ltd. v. Commissioner of Central Excise and Service Tax,
Vapi [2016 (332) E.L.T. 755 (Tri. - Ahmd.)]
3. Learned Counsel appearing on behalf of the respondent submits that
the lapsing of balance Credit is applicable only in case the exemption Notifica-
tion is absolute issued under Section 5A of Central Excise Act, 1944. In the pre-
sent case, they opted for exemption Notification No. 30/2004-C.E., which con-
tained condition of non-availment of Cenvat credit. Therefore, the exemption
Notification No. 30/2004-C.E. is not an absolute Notification. He submits that the
issue has been considered in various judgments, which have been followed by
the Learned Commissioner (Appeals) also. He placed reliance on the following
judgments :-
(i) Jansons Taxtile Processors v. CCE & ST, Salem, 2018 (7) TMI 850-
CESTAT, Chennai.
(ii) Patodia Filaments Pvt. Ltd., Shivkaran Choudhary v. CCE & ST, VAPI
(Vice - Versa), 2019 (4) TMI 435 - CESTAT, Ahmedabad.
(iii) Patodia Filaments Pvt. Ltd. v. CE & ST, Daman, 2019 (8) TMI 201 -
CESTAT, Ahmedabad.
(iv) Kanchan India Ltd. v. CCE, Udaipur, 2019 (1) TMI 310 - CESTAT-
New Delhi.
(v) CCE, Udaipur v. Sitaram India Ltd., 2018 (10) TMI 11 - CESTAT - New
Delhi.
(vi) Wearit Global Ltd. v. CCE, Udaipur, 2018 (8) TMI 1094 - CESTAT-New
Delhi.
(vii) Mahabir Jute Mills Ltd. v. CCE & ST, Allahabad, Final Order No.
71798-71800/2018, dated 27-7-2018.
4. Heard both sides and perused the records.
5. We find that there is no dispute on the fact that the respondent has
opted for exemption Notification No. 30/2004-C.E., which carries the following
conditions :-
“Provided that nothing contained in this Notification, which shall apply to
the goods in respect of which credit of duty on inputs has been taken under
the provisions of Cenvat Credit Rules, 2004.”
6. As per the above condition, the exemption Notification No. 30/2004-
C.E. is not an absolute exemption. The provision for lapsing of credit is provided
in Rule 11(3).

GST LAW TIMES  3rd September 2020  139