CCE Vs. CAPITAL IMPEX (P) LTD.

JUDGEMENT

(1.) Heard at length the learned DR for the appellants and learned Advocate for the respondents.

(2.) This appeal arises from order dated 29.10.2004 passed by the Commissioner (Appeals), Jaipur. By the impugned order, the Commissioner (Appeals) has allowed four appeals filed by the respondents against the four orders passed by the Deputy Commissioner on 09.08.2004 with reference to four different show cause notices. The said show cause notices were issued on 11.05.2004 in relation to rebate claim made by the respondents. The Deputy Commissioner by his orders had rejected the said rebate claims. The Commissioner (Appeals) has set aside those orders and has allowed the rebate claim in all four matters. Hence, the present appeal.

(3.) Placing reliance in the decision in the matter of Punjab Tractors Ltd. v. CCE, Chandigarh reported in, 2005 (181) ELT 380 (SC) and CCE v. Parle Exports (P) Ltd. reported in : 1988 (38) ELT 741 (SC) and drawing our attention to the amended provision in Section 5A of the Central Excise Act, 1944 learned DR submitted that the product in question having been totally exempted from the payment of duty the respondents were not entitled to pay duty thereon and for the same reason they were not entitled to claim rebate under Rule 18 of the Central Excise Rules 2002 nor they were entitled to avail cenvat credit as the final product was exempted from payment of duty. He further submitted that provisions of Section 5A(1A) though were brought into force w.e.f. 13.05.2005, the same being of clarificatory nature, would apply retrospectively and considering the same the respondent could not have paid the duty as a matter of right once the product was totally exempted from the liability to pay the duty thereof. He further submitted that the impugned order is essentially based on the decision of the Tribunal in the case of Reliance Industries Limited v. CCE & Cus., Ahmedabad reported in : 2003 (152) ELT 423 (Tri. Mumbai), however, the said decision is under challenge by the department before the Hon'ble Supreme Court.