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TMI Blog2018 (9) TMI 891X X X X Extracts X X X X X X X X Extracts X X X X ..... Sl.No. 91 is controlled by condition No. 11. The first condition is that the exemption is available for the clearance of first 3500 MTs and the second condition is that the exemption is not applicable to a manufacturer who avails exemption under Notification No. 8/2003-CE dated 01.03.2003. The ‘nil’ rate of tax is therefore available subject to the satisfaction of both the above conditions - appeal allowed. Principles of natural justice - Department is aggrieved by the orders of the Commissioner to the extent that there was no findings with regard to the proposition made in the SCN to the demand of Cenvat credit of the balance amount of ₹ 28,27,645/- and ₹ 17,81,500/- Which was lapsed on 31.03.2010 - other grievance of the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese are assessees appeals filed against the orders of the Commissioner dated 06.09.2012. The appellants are engaged in the manufacture of Kraft Paper falling under sub-heading 48041100. 2.1 The brief facts of the case leading to the present appeals as could be gathered from the contentions in SCN, are that:- i) the assessees had failed to avail the mandatory exemption for the first clearances of an aggregate quantity of 3500 MTs of Kraft paper for the financial year 2010-11 in terms of Sl.No. 90 of Notification No. 4/2006-CE but have paid duty for the clearances of finished goods during the period from 01.04.2010 to 27.05.2010 in terms of Sl.No. 91 of the said Notification, in contravention of provisions of Section 5A (1A) of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d along with various case laws relied upon by both the parties. 4.1 It is the contention of the Ld. Consultant that exemption referred to by the Revenue ie., Sl.No. 90 of the Notification No. 4/2006-CE dated 01.03.2006 as amended is subject to satisfaction of condition No.10 and therefore, is not an absolute Exemption Notification rather a conditional Exemption Notification. For this reason alone, the provisions of Section 5A (1A) are not applicable to the assessee s case. Moreover, according to him, the very same notification, at Sl.No. 91 and 93 grants a concessional rate of 4% duty on final products which had been availed by the appellants. The case of the appellant is being not covered by Sl.No. 90 of the notification supra since it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion No. 8/2003-CE dated 01.03.2003. The nil rate of tax is therefore available subject to the satisfaction of both the above conditions. An identical issue came to be decided by this Bench in a batch matter in the case of M/s. Kovai Maruthi Paper and Boards Ors. Vs. CCE, Salem (supra) involving the following issue extracted for the sake of convenience:- 9. The common issue that arises for consideration in all these appeals is whether the assessees are eligible to avail exemption as per the Notification No. 4/2006 under Sl. No. 91 and clear the goods on concessional payment of duty or whether it is mandatory to avail nil rate of duty as provided under Sl. No. 90. This Bench relying on the decision of Balakrishna Paper Mills O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng is clearly on the demand of Cenvat credit on the balance of ₹ 28,27,645/- and ₹ 17,81,500/-as on 31.03.2010 and therefore, we do not see any valid reason in this ground of the departmental appeal. Therefore, the same is dismissed. 8.2 With regard to the other ground, the Ld. Commissioner in his wisdom has imposed a penalty of ₹ 54,90,960/- and ₹ 17,81,500/-under Rule 15 of CCR read with Section 11 AC of the CEA. We have allowed the assesses appeals by setting aside the demand with consequential reliefs and therefore, the very levy of penalty is set aside and therefore we do not see any merit in the second ground raised by the Revenue. 9. In the result, both the appeals filed by the department are dismissed a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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