2018 (5) TMI 1400 - AT - Central Excise

Valuation - computation of first clearance of aggregate clearance not exceeding 3500 MTs in terms of N/N.04/06-CE dt.1.3.2006 - Held that - The said issue has been examined by this Tribunal in the case of Ballarpur Industries Ltd. 2002 (7) TMI 653 - CEGAT, NEW DELHI and this Tribunal has held that the learned Commissioner was in error in holding that the quantity restriction was to be computed taking into account clearances of all varieties of paper manufactured by the appellant. If the exemption is read as applicable to the clearance of all varieties of paper, it yields all unintended results. Either excluded varieties of paper also get the benefit of the exemption on the ground that they were the first clearances or the included varieties are denied the exemption (as in the present case) merely on the ground that they were not cleared first. Such a reading of a notification which makes it unworkable is to be avoided. In the impugned order it has been observed that the contention of the Revenue is that the assessee had intentionally cleared the exempted paper on payment of duty to encash the duty paid from Cenvat Credit from the buyer and writing paper and printing paper were the same verified on which concessional rate of duty upto the first clearance of 3500 MT. However, the said observation of the Commissioner (Appeals) is without basis and is contrary to the findings. Appeal allowed - decided in favor of assessee.

Summary

Issues Involved:
Calculation of first clearance of aggregate clearance not exceeding 3500 MTs in terms of Notification No.04/06-CE dt.1.3.2006; Entitlement of assessee to avail the benefit of Notification No.04/2006-CE dated 1.3.2006; Imposition of penalty under section 11AC on the assessee.

Analysis:

Issue 1: Calculation of first clearance of aggregate clearance not exceeding 3500 MTs in terms of Notification No.04/06-CE dt.1.3.2006
The Tribunal examined the issue of how to compute the first clearance of aggregate clearance not exceeding 3500 MTs as per Notification No.04/06-CE dt.1.3.2006. Referring to a previous case, it was noted that the exemption under the notification is specific to certain varieties of paper and does not cover all varieties. The Tribunal emphasized that including all varieties of paper would lead to unintended consequences, making the notification unworkable. It was clarified that the exemption applies to the clearance of specific paper varieties only, and denied exemption to other varieties. The Tribunal held that the denial of exemption was incorrect, set aside the duty demand, and allowed the appeal with consequential relief.

Issue 2: Entitlement of assessee to avail the benefit of Notification No.04/2006-CE dated 1.3.2006
The Tribunal found that the Revenue's contention that the assessee intentionally cleared exempted paper on payment of duty to encash the duty paid from Cenvat Credit was without basis. It was noted that a quantity of paper had been cleared on payment of duty, made from pulp meeting the required criteria. The Tribunal held that the impugned order was not sustainable in law, setting it aside and allowing the appeal filed by the assessee based on the decision in a similar case.

Issue 3: Imposition of penalty under section 11AC on the assessee
Since the appeal filed by the assessee was allowed, the question of imposing a penalty on the assessee did not arise. Consequently, the appeal filed by the Revenue for the imposition of a penalty was dismissed.

In conclusion, the Tribunal addressed the issues related to the calculation of first clearance under the notification, the entitlement of the assessee to avail the benefit of the notification, and the imposition of a penalty under section 11AC. The Tribunal's decision was based on legal interpretations and previous case law, ultimately providing relief to the assessee and dismissing the Revenue's appeal for penalty imposition.