2010 (12) TMI 1047

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..... rmits taking of advantage of any other exemption, decision in favour of the Assessee and against the Department
Yatindra Singh and Prakash Krishna, JJ. REPRESENTED BY : S/Shri A.K. Nigam, SC, K.C. Sinha, S.K. Misra and S.P. Kesarwani, Counsels, for the Petitioner. Shri Nishant Mishra, Counsel, for the Respondent. [Order]. - The main question involved in this reference is, If two exemptions are available to the same class of goods then whether an assessee has an option of choosing anyone of them. The Facts : 2. M/s. Modi Xerox Limited (the Assessee), apart from others, manufactures toners. The toners is in the form of black powder packed in bottles. The bottles and its caps are also manufactured by the Assessee. 3. The .....

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..... essee. The plastic bottles & caps for captive consumption were approved as 'nil' duty under the 1986 Notification; • Held that modvat credit was wrongly taken for inputs for the plastic bottles and caps; • Reversed the modvat credit in respect of aforesaid items amounting to Rs. 4,86,217-92 during the period June, 1993 to February 1994. 9. The Assessee filed an appeal. It was dismissed on 29-9-1994. 10. The Assessee filed second appeal before the Customs, Excise and Gold (Control), Appellate Tribunal, New Delhi (the Tribunal). It was allowed on 8th of April, 1997 [1997 (94) E.L.T. 139 (Tri. - Del.)]. The Questions Referred 11. The Excise Department (the Department) filed an application to refer the question fo .....

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..... ic or implied bar in the other notification. 17. The 1992 Notification is in supersession of the Notification No. 53/1988-C.E., dated 1-3-88 that in turn had superseded even an earlier Notification number 132/86 dated 1-3-86. 18. This shows that there were two different exemption schemes since 1986 in respect of certain goods; • One was the 1986 Notification that is being relied by the Department; • The other was also started in the same year namely 1986 by notification number 132/1986, dated 1-3-86 and ultimately culminated into the 1992 Notification and is being relied by the Assessee. 19. The question is, does one notification or more specifically the 1986 Notification specifically or impliedly bar opting ou .....

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