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TMI Blog2015 (11) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... is another condition about non-availment of Notification 8/2003. In our view, in view of the above mentioned two conditions, it cannot be said that serial No. 90 provides absolute exemption to paper and paper board or articles made therefrom manufactured, starting from the stage of pulp, in a factory, and such pulp contains not less than 75% by weight of pulp made form materials other than bamboo, hard woods, soft woods, reeds (other than sarkanda) or rags. - appellant-assessees cannot be forced to pay duty as per serial No. 90 of Notification 4/2006 and they have option to pay the duty under other numbers, viz. 91 and 93. Since we have taken the view that the appellant cannot be forced to pay the duty under nil rate vide serial no. 90, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional arrangement relating to the lapsing of the cenvat credit available as on 31 st March would be applicable. 3. The contention of the appellant-assessees, on the other hand, is that they are free to choose any entry in the Notification and pay duty accordingly. The Revenue cannot force them to pay the duty as per a particular entry. 4. The Revenue's other contention is that as per Section 5A (1A) of the Central Excise Act where an exemption in respect of any excisable goods from the whole of duty of excise leviable thereon has been granted absolutely, the manufacturer of such excisable goods cannot pay the duty and since for the initial clearance of 3500 MT, the duty prescribed is nil, the appellant-assessees are not required t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t exceeding 3500 Metric Tonnes. (2) The exemption shall not be applicable to a manufacturer of the said goods who avails of the exemption under the notification of the Government of India in the Ministry of Finance and Company Affairs (Department of Revenue) No. 8/2003-Central Excise, dated the 1st March, 2003. Explanation .-For removal of doubts, it is hereby clarified that the first clearances of an aggregate quantity not exceeding 3500 metric tonnes shall not include clearances of any paper and paperboard or articles made therefrom which attract nil rate of duty or are exempt from the whole of excise duty under any other notif ication. 11. (1) The exemption shall not be applicable if the factory in which the said goods ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions for the said clearance and hence the provisions of Section 5A(1A) will come into play. The relevant portion of Section 5A is reproduced below: 5A. Power to grant exemption from duty of excise.- (1) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette, exempt generally either absolutely or subject to such conditions (to be fulfilled before or after removal) as may be specified in the notification, excisable goods of any specified description from the whole or any part of the duty of excise leviable thereon: (1A) For the removal of doubts, it is hereby declared that where an exemption under sub-section (1) in respect of any excisable goods fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the stage of pulp, in a factory, and such pulp contains not less than 75% by weight of pulp made form materials other than bamboo, hard woods, soft woods, reeds (other than sarkanda) or rags. 7. In the result, we hold that the appellant-assessees cannot be forced to pay duty as per serial No. 90 of Notification 4/2006 and they have option to pay the duty under other numbers, viz. 91 and 93. Since we have taken the view that the appellant cannot be forced to pay the duty under nil rate vide serial no. 90, the other aspects raised in all the show cause notices as also the Revenue's appeal fall flat. 8. In view of the above position, the appellant-assesseess' appeals are allowed and the Revenue's appeal is dismissed. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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