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2012 (3) TMI 348 - AT - Central ExciseDuty demand - Denial of benefit of Notification No. 4/2006 - computation of clearance of 3500 MT - Commissioner held that appellant had cleared the exempted paper, on payment of duty, to encash the duty paid from Cenvat credit from the buyers - Held that - observation of the Commissioner (Appeals) is without any basis or is contrary to the findings of the Deputy Commissioner arrived in his impugned order. It stands specifically held by the Deputy Commissioner that 150.150 MT of paper on which the duty has been paid is manufactured from the pulp which contains less than 75% by one of pulp made from the specific material, which attracts duty. The above finding is based on the examination and verification of the statutory as records maintained by the appellants. As against the above, there is only an observation by Commissioner (appeals) without any reference to the evidence contrary to the findings of the Deputy Commissioner - Following decision in the case of Ballarpur Industries Ltd. v. C.C.E., New Delhi 2002 (7) TMI 653 - CEGAT, NEW DELHI - Stay granted.
Issues:
- Dispute regarding the computation of clearance of 3500 MT for exemption under Notification No. 4/2006. - Interpretation of Tribunal's decision in the case of Ballarpur Industries Ltd. - Appeal against the order passed by the Deputy Commissioner and subsequent appeal before the Commissioner (Appeals). - Distinguishing between different High Court decisions on computation of clearances. - Observations made by the Commissioner (Appeals) regarding duty paid clearances and Cenvat credit. Issue 1: Dispute regarding the computation of clearance of 3500 MT for exemption under Notification No. 4/2006: The dispute in the present appeal revolves around the calculation of the clearance of 3500 MT for exemption under Notification No. 4/2006. The appellants were alleged to have cleared other paper and paperboards, not qualifying for the exemption, which could impact the eligibility point of 3500 MT. The original adjudicating authority, citing the Tribunal's decision in the Ballarpur Industries Ltd. case, dropped the demand, stating that the exemption applies only to the first clearance of 3500 MT of the specific type of paper, excluding clearances of other paper varieties. Issue 2: Interpretation of Tribunal's decision in the case of Ballarpur Industries Ltd.: The Tribunal's decision in the Ballarpur Industries Ltd. case, dealing with a similar exemption notification, was considered relevant in the present case. The Tribunal noted that the decision in Ballarpur Industries Ltd. covers the disputed issue concerning the concessional rate of duty applicable to a specified quantity of paper made from particular materials. The Commissioner (Appeals) distinguished the Ballarpur Industries Ltd. case without providing a clear reason, leading to a discrepancy in the interpretation of the relevant legal provisions. Issue 3: Appeal against the order passed by the Deputy Commissioner and subsequent appeal before the Commissioner (Appeals): The Revenue, dissatisfied with the Deputy Commissioner's order dropping the demand, filed an appeal before the Commissioner (Appeals), who ruled in favor of the Revenue. This led to the present appeal challenging the Commissioner (Appeals) decision. The Tribunal found that the Commissioner (Appeals) failed to provide a valid reason for distinguishing the Ballarpur Industries Ltd. case and relied on a High Court decision that was not directly comparable to the current scenario. Issue 4: Distinguishing between different High Court decisions on computation of clearances: The Commissioner (Appeals) referenced a Madhya Pradesh High Court decision regarding the computation of clearances under a different notification, which was deemed inapplicable to the case at hand. The Tribunal highlighted the disparity between the High Court decision and the specific language of Notification No. 4/2006, emphasizing the relevance of the Ballarpur Industries Ltd. case in interpreting the exemption provisions accurately. Issue 5: Observations made by the Commissioner (Appeals) regarding duty paid clearances and Cenvat credit: The Commissioner (Appeals) made observations regarding the appellant's duty paid clearances and utilization of Cenvat credit, implying that the clearances were made to recover the duty paid from buyers. However, the Tribunal found these observations to be unsubstantiated and contradictory to the Deputy Commissioner's findings, which were based on factual evidence and statutory records maintained by the appellants. Consequently, the Tribunal agreed that the Commissioner (Appeals) had erred in his reasoning and upheld the appellant's entitlement to unconditional dispensation of the pre-deposit of duty and penalty. In conclusion, the Tribunal decided in favor of the appellant, granting unconditional dispensation of the pre-deposit of duty and penalty due to the issue being prima facie covered by the Tribunal's decision in the Ballarpur Industries Ltd. case. The Revenue's stay petition was deemed infructuous, and the Commissioner (Appeals) decision to set aside the penalty was considered non-executable.
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