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TMI Blog2018 (5) TMI 474X X X X Extracts X X X X X X X X Extracts X X X X ..... Kovai Maruthi Paper and Boards Pvt. Ltd. who have cleared goods on payment of concessional rate of duty under Sl. No. 91 of Notification No. 4/2006. Appeal allowed - decided in favor of appellant. - E/40005, 40013, 40080, 40079, 40635, 40666/2013, E/42681, 42682, 42683/2014 - Final Order Nos. 41301-41309 / 2018 - Dated:- 11-4-2018 - Hon ble Ms. Sulekha Beevi C.S., Member (Judicial) And Hon ble Shri Madhu Mohan Damodhar, Member (Technical) Shri S. Raghu, Advocate for the Assessee Shri S. Govindarajan, AC (AR) for the Respondent ORDER Per Bench The issue involved in all these appeals being connected, they were heard together and are disposed by this common order. 2. Brief facts are that M/s. Kovai Maruthi Paper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orities below though rightly confirmed the demand ought not to have directed to credit the amount to the Consumer Welfare Fund. 3. Appeal No. E/42681 to 42683/2014 is filed by appellants who were issued show cause notices alleging wrong availment of credit on the ground that they have availed credit of duty on the goods cleared to them by M/s. Kovai Maruthi Paper and Boards Pvt. Ltd. whereas the said company ought not to have cleared the goods on payment of duty and should have availed exemption in terms of Notification 4/2006-CE. 4. Pursuant to the show cause notice issued to M/s. Kovai Maruthi Papers Board and M/s. Saraswati Udyog India Ltd., since the show cause notice proposed to debit the credit of duty taken by them, these app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nil rate of duty prescribed against Sl. No. 90 whereas the assessee contends that the exemptions being condition, they have opted to avail concessional rate of duty under Sl. No. 91. 6. The issue stands settled in the case of Balakrishna Paper Mills and Others 2015-TIOL-1100 which is relied in the cases of Murli Industries 2015-TIOL-1789 and Padmavati Pulp and Paper Mills 2015-TIOL-2434. The ld. counsel has submitted that consequently the demand made in the appeals filed by M/s. Srivari Packaging Industries, M/s. Srivari Print Pack and M/s. Shri Ram Cartons cannot sustain for the reason that they have rightly availed credit of duty passed on by M/s. Kovai Maruthi Paper and Boards Pvt. Ltd. who have cleared goods on payment of con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nil - 93. 4802, 4804, 4805, 4807, 4808 or 4810 All goods 12% 10. (1) This exemption shall apply only to the paper and paperboard or articles made therefrom cleared for home consumption from a factory, in any financial year, up to first clearances of an aggregate quantity not 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 1/3/2003 will not be eligible for the present exemption. Serial No. 90 prescribes nil rate of duty. Further, the nil rate of duty is subject to two conditions prescribed under serial No. 10. The first condition is that nil rate is applicable in any financial year upto first clearances of an aggregate quantity not exceeding 3500MT. The second condition is that the manufacturer shall not be availing the benefit of Notification 8/2003-CE dated 1.3.2003. The Revenue's contention is that for the initial clearance of 3500 MT, the rate of duty is nil and there are no conditions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pay the duty only where the goods are exempt and the exemption granted is absolute. In the present case, serial No. 90 has two conditions. The first condition limits exemption for goods cleared for home consumption from a factory in any financial year upto first clearances of an aggregate quantity not exceeding 3500 MT. Further, there 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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