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TMI Blog1994 (6) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... ng full exemption from payment of excise duty in terms of clause (a) of para 1 of Notification No. 175/86, dated 1-3-1986, as amended. However, on 24-4-1986, Notification No. 260/86 was issued inserting the following clause in Proviso to Notification No. 138/86, dated 1-3-1986 :- (V) Exemption contained in this Notification shall not apply to a manufacturer of paper or paper boards who avails of the exemption under Notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 175/86-C.E., dated 1-3-1986". The respondents discontinued to avail the exemption in terms of Notification No. 175/86, dated 1-3-1986 and started to clear the goods from 24-4-1986 by availing of exemption contained in Notification No. 138/86, dated 1-3-1986. However, the Department tentatively formed a view that the respondents were not entitled for duty free clearance in terms of clause (a) of para 1 of Notification No. 175/86 during the period from 1-4-1986 to 23-4-1986 when they started availing exemption contained in Notification No. 138/86 dated 1-3-1986. A Show Cause Notice dated 11-6-1986 demanding duty on the goods cleared during 1-4-1986 to 23-4-1986 was issued to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further that the amendment affected in Notification No. 138/86 vide Notification No. 260/86, dated 24-4-1986 would have no meaning if the unit availed of entire small scale exemption right upto Rs. 75/- lakhs turn-over, the maximum permissible, during 1-4-1986 to 23-4-1986. It would render Notification No. 138/86 as amended, rendundant if the party after having availed of the maximum small scale exemption i.e. upto Rs. 75/- lakhs during the period 1-4-1986 to 23-4-1986, starts availing exemption Notification No. 138/86 on the ground that from 24-4-1986 he is not availing small scale exemption, obviously because he has already exhausted latter exemption. Therefore, logical construction that should be placed on the expression avails of under the Notification No. 138/86 would be to interpret the expression availed of as avail of . He also cited the case of B.K. Rubber Industries (P) Ltd. v. Union of India, 1993 (68) E.L.T. 575 (M.P.) = 1994 (50) ECR 4 (MP) wherein it was held that slab exemption under exemption Notification No. 65/81-C.E. to be allowed on first clearances in chronological order upto aggregate value of Rs. 75 lakhs in a financial year. 4. In reply Shri S.K. Gadhok, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals), who held as under :- The relevant provisions under Notification No. 138/86-Central Excise as amended by Notification No. 216/86-Central Excise read as follows : The exemption contained in this Notification shall not apply to a manufacturer of paper and paper boards who avails of the exemption under Notification of the Government of India, in the Ministry of Finance No. 175/86-Central Excise dated 1-3-1986". Therefore, it is abundantly clear that an assessee who avails of the provisions of Notification No. 175/86-Central Excise cannot avail benefit of Notification No. 138/86-Central Excise by virtue of the exemption introduced in the said notification by Notification No. 216/86-Central Excise, dated 24-4-1986. Even if the assessee have filed the classification claiming the benefit under Notification No. 138/86-Central Excise because of the above provisions in that Notification, the Assistant Collector should have rejected the classification. He has not done so. But applied the Notification 138/86-Central Excise where it is not applicable. There is no provision in Notification 175/86-Central Excise regarding Notification No. 138/86-Central Excise. Therefore in the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 10. Repelling the contention raised by the Revenue the Tribunal observed as follows :- 5. We observed that it is nobody s case that the respondents in case they had opted for availing of the benefit of Notification 175/86 only they were in any way barred from the benefit of the said Notification. It is also conceded that the appellants were at liberty to claim benefit under either of the two Notifications. The learned Collector (Appeals) has merely extended in his order the benefit of Notification 175/86 to the respondents. Legally we do not find any basis in the plea of the appellant that the respondent could be forced to avail of the benefit of Notification 138/86 when they are eligible for the benefit under Notification 175/86 also and when the benefit under either of the five notifications is available to them under law. We, therefore, find no infirmity in the order of the Collector (Appeals) and accordingly dismiss the appeals. 11. In the instant case it is interesting to note that the Revenue had not issued the Show Cause Notice proposing to deny the benefit of Notification No. 138/86 on the clearances effected from 24-4-1986 in view of the amendment in Notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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