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TMI Blog2022 (6) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... ousand Three Hundred Sixty Three only) as detailed in Annexure-A to the Show Cause Notice under Rule 14 of Cenvat Credit Rules, 2004. 3) I disallow the inadmissible Cenvat Credit of total Rs. 78,89,970 Seventy Eight Lakhs Eighty Nine Thousand Nine Hundred Forty Six only) advance by the Noticee during the years 2008-09. 2009-10 and 2010-11 as detailed in Annexure-B to the Show Cause Notice and order the recovery of the san Rule 14 of Cenvat Credit Rules, 2004. 4) I order for recovery of the amount of Rs.75,22,325/- (Seventy five lakhs Twenty Two Thousand Three Hundred Twenty Five only) collected on invoices from the customers during the period 2008-09, 2009-10 and 2010-2011 under the guise of duty of excise, liable to be deposited to the Credit of Central Government under Section 11-D of Central Excise Act, 1944. 6) I order for recovery of the amount as confirmed aforesaid along with interest in terms of the provisions of Section 11AB of the Central Excise Act, 1944 read with Rule 14 of Cenvat Credit Rules, 2004 and Section 11-DD of Central Excise Act, 1944. 7) I impose Penalty of Rs.85,61,309/- (Rupees Eighty Five Lakhs Sixty One Thousand Three Hundred Nine Only) under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the condition 11 of the above Notifications. 2.5.1 As by not availing the complete exemption from payment of duty as per Sl No 90 of the said Notifications appellant continued paying the duty as per Sl No 93 of the Notification they continued to operate under the CENVAT Credit Scheme. 2.6 A Show Cause Notice dated 04/05/2011 was issued to the appellant, proposing thereunder that- * the self-assessment under Rule 6 of Central Excise Rules, 2002 in respect of the goods cleared by them during the period from 01-04-2008 to 31-03-2011 should not be asked to assess at "Nil' duty under Sr. No. 90 of Notification No. 4/2006-CE dated 01-03-2006 as amended; * the amount of Rs.75,22,325/- recovered by the appellant from their customers as representing central excise duty payable should not be recovered under Section 11D of Central Excise Act, 1944; * CENVAT Credit amounting to Rs.85,61,309/- wrongly availed/utilized by the Noticee should not be recovered from them under Rule 14 of Cenvat Credit Rules 2004 read with Section 11A of Central Excise Act, 1944; and * penalty should not be imposed on them for acts of omissions and commissions deliberately violating the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Goods 8% - Notification. No. 58/2008 CE dated 07-12-2008. Sl No Chapter Description Rate Condition 1 2 3 4 5 90 48 Paper and paperboard 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 from materials other than bamboo, hard woods, soft woods, reeds (other than sakarkanda) or rags. Nil 10 91 48 Paper and paperboard 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 from materials other than bamboo, hard woods, soft woods, reeds (other than sakarkanda) or rags. 4% 11 93 4802, 4804, 4805, 4807, 4808 or 4810 All Goods 4% - Condition No.10 of Notification 04/2006-CE dated 01-03-2006 reads as under; 1) This exemption shall apply only to paper and paperboard or articles made therefrom cleared for home consumption from a factory in any financial year up to clearances of an aggregate quantity not exceeding 3500 metric tonne. 2) The exemption shall not be applicable to a manufacturer of the said goods who avails of the exemption of the Govt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 from the whole of the duty of Excise leviable thereon has been granted absolutely, the manufacturer of such excisable goods shall not pay the duty of Excise on such goods." It would be seen from the said Section 5A that the Central Government is empowered to exempt generally either absolutely or subject to such conditions (to be fulfilled before or after removal) as may be specified in the Notification from the whole or any part of the duty. Further, a reading of Section 5A(1A) shows that for the removal of doubts, it is hereby declared that where an exemption under sub-section (1) in respect of any excisable goods from the whole of the duty of Excise leviable thereon has been granted absolutely, the manufacturer of such excisable goods shall not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the case of the assessee is covered by both the Notifications. However, he can take benefit of only one of them. 14. The counsel for the Department submits that : * The 1992 Notification is general, whereas the 1986 Notification is specific for the goods being captively consumed; * In case there is specific notification then it will prevail over general one; * In this case 1986 Notification rather than 1992 Notification is applicable. 15. It has been held (see below for citations) that where there are two exemption notifications that cover the goods in question, the assessee is entitled to the benefit of the exemption notification which gives him greater relief. 16. If the goods are covered by the two Notifications, then as held by the courts, it is open to an assessee to choose any one of them. He may not choose one notification over the other if there is any specific 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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