Page 125 - GSTL_3rd September 2020_Vol 40_Part 1

2020 ] COMMISSIONER OF CENTRAL EXCISE & CGST, ALWAR v. ORIENT SYNTEX 59
“3. Ld. Advocate for the appellant while relying upon the decision
of Jansons Textile Processors v. Commissioner, Central Excise & ST Sa-
lem - 2018 (7) TMI 850 (CESTAT), Chennai has submitted that the
present case is squarely covered under the said decision. Actually
Rule 11 sub-rule (1) of CCR is applicable to him. It is impressed up-
on that decision under challenge has wrongly relied upon Rule 11
sub-rule (2) of CCR while denying utilization of the unutilized cred-
it with the appellant. Order is accordingly prayed to be set aside
and appeal is prayed to be allowed.
4. Ld. DR while justifying the impugned order has impressed up-
on findings in para 21.2 thereof. It is impressed upon that the adju-
dicating authority has clearly explained about the applicability of
Rule 11(2) in the present case. Appeal is accordingly prayed to be
rejected.
5. After hearing both the parties, we are of the opinion that in the
present case the appellant has opted for exemption as per the Noti-
fication No. 30/2004-C.E. where the exemption is conditional. As
per Rule 11(3)(ii) CCR, Cenvat Credit balance will lapse only if the
product is exempted absolutely under Section 5A of Central Excise
Act. But since the Notification No. 30/2004-C.E., dated 9-7-2004 is a
conditional notification, hence only Rule 11(3)(i) of CCR would ap-
ply which does not mandate any such lapsing.
6. We draw our support from the decision of CESTAT Chennai in
the case of Janson Textile Processors v. Commissioner of Central Excise
& ST, Salem wherein it was held as follows :-
“5.1 The core issue that comes up for decision is whether the
transitional provisions contained in sub-rule (3) of Rule 11 will be
applicable to both sub-rules 3(i) and 3(ii). For better understand-
ing, the relevant provisions relating to manufacturers are repro-
duced as under :-
RULE 11. Transitional provision. -
… … …
(3) A manufacturer or producer of a final product shall
be required to pay an amount equivalent to the Cenvat
credit, if any, 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 stock, if,
(i) he opts for exemption from whole of the duty of
excise leviable on the said final product manufac-
tured or produced by him under a notification is-
sued under Section 5A of the Act; or
(ii) the said final product has been exempted absolute-
ly under Section 5A of the Act, and after deducting
the said amount from the balance of Cenvat credit,
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 payment of service tax on any
output service, whether provided in India or ex-
ported.
GST LAW TIMES  3rd September 2020  141