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TMI Blog2022 (5) TMI 1243X X X X Extracts X X X X X X X X Extracts X X X X ..... tion entry and the other one is a conditional exemption, which was subject to fulfilment of the conditions attached to the exemption entry - In the present case, the exemption entry at Sl. No.90 of Notification No. 4/2006-Central Excise was attached with two conditions for availing of the benefit of duty exemption and therefore, it was a conditional exemption and not an absolute exemption, as contemplated by Section 5A(1A) ibid. Since, the appellant had opted for payment of duty on clearance of the finished products and availed cenvat credit of Central Excise duty, such option exercised by the appellant cannot be questioned by the department inasmuch as there was no stipulation contained in the subject notification that only condition No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. No.91 prescribed the concessional rate of duty of 12% advalorem, which was subject to fulfilment of the condition No. 11. The third entry at Sl. No.93, which was unconditional, also prescribed concessional rate of 12% advalorem. 1.1. In the budget for the year 2008-09, the Notification No. 4/2006-C.E. at Sl. No. 90 was amended by Notification No. 4/2008- C.E. dated 01.03.2008 in changing the rate of duty from 8% to NIL , retaining all other conditions as per the earlier notification. Corresponding changes were also made in the rate of duties prescribed vide entries at Sl.No.91 93, which were changed from 12% advalorem to 8% advalorem. No changes were made in the columns relating to conditions in both the said entries. By Notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posals made therein were confirmed by the learned Original Authority 2. Feeling aggrieved with the impugned order, the appellant has preferred this appeal before the Tribunal. 3. None appeared for the appellant. Heard Shri Sydney D Silva, learned A.R. for the Revenue and examined the case records. He has reiterated the findings recorded by the original authority. Further, he has relied upon the orders of this Tribunal passed in the case of Sidhmukh Flexible Packaging (P) Ltd. Vs. Commissioner of C. Ex., Indore 2005 (191) E.L.T. 983 (Tri.-Del.), Process Pumps (India) P. Ltd. Vs. Commissioner of Central Excise, Bangalore 2004 (173) E.L.T. 98 (Tri.-Bang.) and Hewelett Packard (I) Sales (P) Ltd. Vs. Commr. Of Cus., Bangalore 2007 (6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of Section 11D ibid cannot be invoked for recovery of the duty amount in question. 5. We find that the issue arising out of the present dispute is no more res integra, in view of the order Nos. A/607-611/15/EB dated 05.02.2015, passed by the Tribunal in the case of Balkrishna Paper Mills Ltd. Ors. Vs. Commissioner of Central Excise, Thane-I, reported in 2015-TIOL-1100-CESTAT-MUM. The relevant paragraph in the said order is extracted herein below: 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 du ..... X X X X Extracts X X X X X X X X Extracts X X X X
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