ORDER N. Kotiswar Singh, J. 1. The present 5 (five) writ petitions involve common question of law and also as agreed by the parties, all these petitions are heard together and are being disposed of by this common judgment and order. Heard Mr. G.N. Sahewalla, learned senior counsel assisted by Mr. P. Deka, learned counsel appearing for the petitioners. Also heard Mr. M.Z. Ahmed, learned senior counsel assisted by Ms. B. Dutta, learned counsel appearing for the respondents No. 1 to 7. The writ petitioners are limited companies registered under the Indian Companies Act, 1956 having their offices at Guwahati/in Punjab and doing business in coal by way of purchasing from the North Eastern region and supplying to various brick fields through traders in the North Eastern region as well as other parts of the country. They have challenged the levying of 5% excise duty with cess on the coal purchased by them from the Coal India Ltd. claiming that levying of such 5% of excise duty is illegal and instead ought to have been levied only 1.03% duty in terms of the Government of India's Notification No. 1/2011-C.E., dated 1-3-2011. 2. It has been stated by the writ petitioners that "coal" falls under Chapter 27 of the Central Excise Tariff Act, 1985 and there is 5% excise duty of coal and 3% cess on the duty tariff. However, in exercise of the powers conferred under sub-section (1) of Section 5A(1) of the Central Excise Act, 1944, the Central Government had issued a notification under Notification No. 1/2011-C.E., dated 1-3-2011 exempting various goods which includes "coal" from paying excise duty in excess of amount calculated at the rate of 1% ad valorem. It has been further provided in the said notification dated 1-3-2011 that the aforesaid notification shall not apply to the goods in respect of which credit of duty on inputs or tax on input services has been taken under the provisions of CENVAT Credit Rules, 2004. Relevant portions of the aforesaid Notification No. 1/2011-C.E., dated 1-3-2011 issued by the Government of India are reproduced herein below : Notification No. 1/2011-C.E., dated 1-3-2011 Exemption to excisable goods specified under First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986). Relevant portions of the aforesaid Notification No. 1/2011-C.E., dated 1-3-2011 issued by the Government of India are reproduced herein below : Notification No. 1/2011-C.E., dated 1-3-2011 Exemption to excisable goods specified under First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986). - G.S.R.(E) - In exercise of the powers conferred by sub-section (1) of Section 5A of the Central Excise Act, 1944 (1 of 1944), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the excisable goods of the description specified in column (3) of the Table below and falling under Chapter, heading, sub-heading or tariff item of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), specified in the corresponding entry in column (2) of the said Table, from so much of the duty of excise leviable thereon under the said Central Excise Act, as is in excess of the amount calculated at the rate of 1% ad valorem : Provided that nothing contained in this notification shall apply to the goods in respect of which credit of duty on inputs or tax on input services has been taken under the provisions of the CENVAT Credit Rules, 2004. It is stated that "coal" comes under Sl. No. 28 of the aforesaid Table. 3. According to the petitioners, in view of the aforesaid notification dated 1-3-2011 issued by the Government of India, the respondents/authorities of the Coal India Limited also issued a notice on 3-3-2011 stating that coal would be subject to central excise duty at the rate of 1% provided, no CENVAT Credit is availed under the provisions of the CENVAT Credit Rules, 2004. The petitioners also state that the General Manager (Finance) Central Coal Fields Ltd., Ranchi issued a letter to the various Chief General Managers under his jurisdiction on 9-3-2011 regarding charging of duty at 1% plus and 3% on the duty as education cess. 4. It is the case of the petitioners that after issuance of the aforesaid notification, when the petitioners purchased coal from the respondents, Coal India authorities charged excise duty at 5% plus cess, i.e. 5.15% in spite of petitioners giving information to the respondents that the petitioners are not availing any CENVAT Credit and as such, in stead of 5.15%, the excise duty levied ought to be 1.03%. The petitioners also state that when the petitioner No. 2 in W.P.C. No. 2489 of 2011 purchased one rack of coal from Mineral Development and Trading Corporation Ltd. Arunachal Pradesh, the said company charged excise duty only at the rate of 1.03%. 5. It is the case of the petitioners that since the petitioners are not availing the CENVAT Credit, in terms of the aforesaid notification issued by the Government of India, only 1.03% of the excise duty is leviable in respect of the coal purchased by the petitioners from the Coal India Ltd. Accordingly, the petitioners claim, that since levying of 5.15% is illegal, the said amounts of duty charged from the petitioners by the coal authorities are liable to be refunded except the amount to the extent of 1.03% leviable. The petitioners also contend that since the petitioners have been illegally charged more excise duty without any authorization, they have been prejudiced in the fiercely competitive market where they are compelled to sell coal at higher prices compared to lower prices offered by their competitors. 6. Affidavits-in-opposition have been filed on behalf of Coal India authority. No affidavit-in-opposition has been filed on behalf of the subsequently impleaded respondents No. 8 and 9 i.e. Union of India represented by the Ministry of Finance and the Commissioner of Central Excise and Customs, Government of India, Dibrugarh in these writ petitions. 7. The contentions of the respondents/Coal India Ltd. briefly, are as follows :- (i) Coal India Ltd. is a Government of India enterprise duly registered under the Indian Companies Act, 1956 having its registered office at Kolkata and the North Eastern coal fields are the production units of the Coal India Ltd. (ii) "Coal" has been classified under Chapter 27.01 of the First Schedule to Central Excise Tariff Act, 1985 and the respondent company is registered as a manufacturer of coal under the Central Excise Act, 1944. The Coal India/respondent contended that under the Union Budget of 2011, full exemption earlier available to a manufacturer of coal, along with other items, has been withdrawn by the Union Government and has imposed Central excise duty at the rate of 5% plus cess of 3% on duty on coat (effective rate - 5.15%) w.e.f. 1-3-2011 by amending Clause (viii) of the Tenth Schedule of the Finance Bill, 2011. In view of the aforesaid imposition of excise duty on coal, the aforesaid excise duty at the rate of 5% is now leviable on coal. Government of India also issued a notification under sub-section (1) of Section 5A of the Central Excise Act, 1944 being Notification No. 1/2011-C.E., dated 1-3-2011 by which exemption has been given in respect of excisable goods as given in the said notification (which includes "coal"), from so much of the duty of excise leviable thereon under the said Central Excise Act, 1944, as is in excess of the amount calculated at the rate of 1% ad valorem. However, it has been also provided in the said notification that the aforesaid exemption will not be applicable in respect of the goods in respect of which credit of duty on inputs or tax on input services has been taken under the provisions of CENVAT Credit Rules, 2004. (iii) It is the case of the respondents that since Coal India Ltd. being a manufacturer, has availed the CENVAT Credit under the provisions of the CENVAT Credit Rules, 2004, the aforesaid exemption given under Notification No. 1/2011-C.E., dated 1-3-2011 will not be applicable, and the central excise duty at the rate of 5% plus cess as fixed tariffs are leviable on "coal". (iv) The respondents/Coal India Ltd. has stated that the company after due deliberations and in the best interest of company and in public interest being a public undertaking had decided to avail the CENVAT Credit under the provisions of CENVAT Credit Rules, 2004 and accordingly, has proposed to levy Central Excise duty on coal at the rate of 5% (5.15% including cess). Accordingly, it informed all the Coal India Ltd. production units under its letter dated 7-3-2011 that the Central Excise duty at the rate of 5% (including 0.15% cess) on coal may be levied to enable it to avail the CENVAT credit under the provisions of CENVAT Credit Rules, 2004. Therefore, the Respondents/Coal India contends that the Company has rightly imposed Central Excise at the rate of 5.15% (including cess) so as to enable the Company to avail CENVAT credit under the provisions of CENVAT Credit Rules, 2004. (v) Coal India Ltd. contends that levying of 5.15% of excise duty is, therefore, as per rules and there is no illegality in the same. (v) Coal India Ltd. contends that levying of 5.15% of excise duty is, therefore, as per rules and there is no illegality in the same. Coal India Ltd. accordingly, contends that the writ petitioners as traders of coal must necessarily pay the said excise duty as it is a well settled law that tax burden on any commodity ultimately shifts to the consumers. It is the contention of the Coal India authorities that the amounts so collected as excise duty from the purchasers are credited to the Government of India authorities and there is no undue gain from such imposition of excise duty and as such, there is no illegality in the imposition and collection of such excise duty. Coal India Ltd., therefore, contends that it is upto the petitioners to purchase the coal from them and if any other company charges duty at the rate of 1%, it is not of any concern to the Coal India Ltd. The petitioners are free to purchase coal from wherever they may wish. (vi) It is also the case of the respondents/Coal India authorities that even if the petitioners claim that they have been wrongly levied at the rate of 5% plus cess on excise duty, they could always claim for refund of the excise duty by taking recourse to Section 11(B) of the Central Excise Act, 1944 which provides for alternative remedy for claim of the refund of the excise duty and as such the present writ petitions are not maintainable and has relied on a number of judgments rendered by the Supreme Court in Dhampur Sugar Mills v. State of U.P. and Others - (2007) 8 SCC 338 , Godrej Sara Lee Limited v. Assistant Commissioner (AA) and Another - (2009) 14 SCC 338 = 2009 (236) E.L.T. 425 (S.C). 8. I have heard and considered the rival contentions of the parties. As regards the fact that 'coal' now attracts excise duty at the rate of 5% plus cess w.e.f. 1-3-2011 is not disputed. What is also not disputed is that the Government of India had issued a notification under No. 1/2011-C.E., dated 1-3-2011 by which certain excisable goods including "Coal" have been exempted from so much of the excise duty as is in excess of the amount calculated at the rate of 1% ad valorem. What is also not disputed is that the Government of India had issued a notification under No. 1/2011-C.E., dated 1-3-2011 by which certain excisable goods including "Coal" have been exempted from so much of the excise duty as is in excess of the amount calculated at the rate of 1% ad valorem. It is also not disputed that as per the aforesaid notification dated 1-3-2011, such exemption will not be applicable to the goods in respect of which credit of duty on inputs or tax on input services has been taken under the provisions of the CENVAT Credit Rules, 2004. 9. It may be stated that with reference to the notification dated 1-3-2011, corresponding amendment was made in Rule 3 of the CENVAT Credit Rules, 2004 relevant portions of which may be reproduced herein below :- Rule 3. CENVAT Credit. - (1) A manufacturer or producer of final products or a provider of taxable service shall be allowed to take credit (hereinafter referred to as the CENVAT Credit) of: (i) the duty of excise specified in the First Schedule to the Excise Tariff Act, leviable under the Excise Act; [Provided that CENVAT Credit of such duty of excise shall not be allowed to be taken when paid on any goods in respect of which the benefit of an exemption under Notification No. 1/2011-C.E., dated the 1st March, 2011 is availed;] (ii).............................. From the aforesaid Rule 3, it is clear that the proviso to Rule 3(1)(i) which was inserted w.e.f. 1-3-2011 by Notification No. 3/2011-C.E. (N.T.), dated 1-3-2011 pursuant to the Notification No. 1/2011-C.E., dated 1-3-2011 provides that where CENVAT Credit of such duty on excise had been taken, the benefit of exemption under Notification No. 3/2011-C.E., dated 1-3-2011 cannot be availed. Therefore, it is very clear from the above notification of the Government of India dated 1-3-2011 as well as from Rule 3 of the CENVAT Credit Rules, 2004 that whenever any company seeks to take benefit of the exemption under Notification No. 1/2011-C.E., dated 1-3-2011, CENVAT Credit under the CENVAT Credit Rules, 2004 shall not be allowed to be taken. In other words, if the CENVAT Credit facility under the CENVAT Credit Rules, 2004 is taken, the aforesaid exemption in the excise duty will not be available. In other words, if the CENVAT Credit facility under the CENVAT Credit Rules, 2004 is taken, the aforesaid exemption in the excise duty will not be available. Thus, since the aforesaid exemption will not be applicable in case of any excisable goods where the CENVAT credit has been availed of, the normal tariff of 5% of excise duty would be leviable. 10. It has been argued on behalf of the petitioners that Coal India Ltd. is not entitled to take credit of duty on inputs on the manufacture of coal under the provisions of CENVAT Credit Rules, 2004 inasmuch as "inputs" for manufacture of coal is negligible. As such, they cannot avail the credit of duty on inputs under the CENVAT Credit Rules, 2004. Therefore, only 1% of duty ad valorem as provided under Notification No. 1/2011-C.E., dated 1-3-2011 would be leviable on coal. This contention of the writ petitioners, however, cannot be accepted in as much as it has not been pleaded anywhere by the writ petitioners that the Coal India Ltd. is not entitled to take CENVAT Credit under the CENVAT Credit Rules, 2004 even though it had been specifically claimed in the affidavit-in-opposition of the Coal India Ltd. that the Company had decided to avail of the CENVAT credit under the CENVAT Credit Rules, 2004. Further, it may be also observed that merely because of the fact that "inputs" for manufacture of coal by the Company may be negligible, it would not disentitle the Company to take CENVAT Credit under the CENVAT Credit Rules, 2004 if they so desire. 11. The respondent Coal India Ltd. has very categorically stated that as a matter of policy and after due deliberation, the Company had decided to avail of the CENVAT credit facility under CENVAT Credit Rules, 2004 as stated in their affidavit-in-opposition. The petitioners have not filed any rejoinder affidavit to contest the claim of the Coal India Ltd. that the Coal India Ltd. is availing CENVAT credit under the CENVAT Credit Rules, 2004. 12. The petitioners have not filed any rejoinder affidavit to contest the claim of the Coal India Ltd. that the Coal India Ltd. is availing CENVAT credit under the CENVAT Credit Rules, 2004. 12. The respondent/Coal India Ltd. had also contended that Notification No. 1/2011-C.E., dated 1-3-2011 only provides a conditional exemption and not a total exemption to pay only at the rate of 1% in as much as the said exemption is available only when credit facility under the CENVAT Credit Rules are not availed of and since the Coal India authorities have decided to avail of the CENVAT credit facilities, the excise duty is leviable at the rate of 5% with cess. The Coal India Ltd. had the choice either to avail or not to avail of the CENVAT credit facility under CENVAT credit Rules, 2004. Thus, if the Coal India Ltd. had decided to avail the CENVAT credit, the exemption could not have been applied, and such an option exercised by the Coal India Ltd. could not be faulted with. 13. It may be also observed that the condition of non-availing of CENVAT credit, if exemption is sought for as specified in the said Notification No. 1/2011-C.E., dated 1-3-2011 applies only to the manufacturer of excisable goods and the said condition does not apply to the non-manufacturer buyer of the goods. Since the petitioners are not manufacturers but traders as admitted by themselves who merely buy coal from the manufacturer and in turn sell to other customers or manufacturers, the claim of the petitioners that they have not availed of the CENVAT credit under the CENVAT Credit Rules, 2004 does not arise. Therefore, the contention of the petitioners that they are not availing CENVAT credit and as such, the excise duty only to the extent of 1.03% would be leviable cannot be accepted in as much as the petitioners are not manufacturers themselves who are using coal as "inputs" for manufacture of any other goods. As admitted by themselves, they are merely traders who are engaged in the purchasing and selling of coal to other customers. 14. What emerges from the above is that coal attracts excise duty at the rate of 5% plus cess w.e.f. 1-3-2011. As admitted by themselves, they are merely traders who are engaged in the purchasing and selling of coal to other customers. 14. What emerges from the above is that coal attracts excise duty at the rate of 5% plus cess w.e.f. 1-3-2011. However, the aforesaid excise duty will be exempted and leviable only to the extent of 1% ad valorem plus cess, in the event credit of duty on inputs has not been taken under the provisions of CENVAT Credit Rules, 2004 as also provided under the Government of India's Notification dated 1-3-2011. 15. Since Coal India Ltd. as a manufacturer of "coal" has decided to avail credit of duty on inputs under the provisions of CENVAT Credit Rules, 2004, the exemption provided under Notification No. 1/2011-C.E, dated 1-3-2011 will not be applicable. Therefore, excise duty at the rate of 5% would be leviable on "coal". The writ petitioners who are mere traders and not manufacturers, obviously, cannot claim CENVAT Credit under the CENVAT Credit Rules, 2004 and accordingly, has to pay the excise duty on coal at the rate of 5% plus cess on duty as a purchaser. 16. Accordingly, this Court is of the opinion that Coal India Ltd. is entitled to levy excise duty at the rate of 5.15% (which includes cess), as has been done, in respect of coal sold by them to any other person including the petitioners, since the Company had decided to avail the CENVAT credit under the CENVAT Credit Rules, 2004 as stated by them. The exemption given to the excise duty in excess of the amount calculated at the rate of 1% ad valorem as per Notification No. 1/2011-C.E., dated 1-3-2011 will not be applicable so long as Coal India Ltd. takes CENVAT Credit under the CENVAT Credit Rules, 2004. 17. In view of the above finding, consideration of other issues raised in the writ petitions may not be necessary. Accordingly, the present petitions stand dismissed. However, in the facts and circumstances of the case, no order as to costs. Petition dismissed