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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 ..... 022 - Dated:- 1-3-2022 - MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) AND MR. P. DINESHA, MEMBER (JUDICIAL) Shri Girish L. Deshpande, Advocate, for the Appellant Ms. Anuradha Parab, Assistant Commissioner, Authorised Representative for the Respondent ORDER This appeal is directed against order in original No 27/2012/C dated 24.04.2012 of the Commissioner of Central Excise and Customs, Nagpur. By the impugned Order Commissioner has held as follows: ORDER 1) I confirm the assessment under Rule 6 of Central Excise Rules 2002 in respect of the goods cleared by the Noticee during the period from 01-03-2008 to 31-03-2008 and during the subsequent Financial Year i.e. 2008-09, 2009-10 and 2010-11 at Nil rate of duty under Sr. No. 90 (ninety) of Notification. No. 4/2008 - CE dated 01-03-2008 for the first clearances of an aggregate quantity not exceeding 3500 Metric Tonnes. 2) I order the recovery of inadmissible Cenvat Credit of total Rs.6,71,363/ (Rs. Six lakhs Seventy On Thousand 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided under Notification No. 04/2006-CE, as amended and cleared their finished goods on payment of duty at the rate of 8% during the period from 01-04- 2008 to 07-12-2008 and 4% after 07-12-2008 instead of availing full exemption granted absolutely to their product as mentioned at Sr. No. 90 of the Notification no. 04/2006 dated 01-03-2006 as the rate of duty on the said product, mentioned against Sr. No. 90 of the said Notification was changed from 8% to Nil' as per Notification No. 04/2008-CE dated 01-03-2008. 2.5 Situation remained same as per Notification No. 58/2008 CE dated 07-12-2008 during the period in question under the Condition No. 10 of the Notification. However, as per the amended Notifications viz. Notification No. 04/2008-CE dated 01-03-2008 and Notification No. 58/2008 CE dated 07-12-2008 the rate of duty in respect of the product mentioned at Serial Number 91 and 93 of basic Notification i.e. 04/2006-CE dated 01-03-2006 the rate of duty was changed from 12% to 8% and from 8% to 4% respectively under 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 Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s other than bamboo, hard woods, soft woods, reeds (other than sakarkanda) or rags. 8% 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. 8% 11 93 4802, 4804, 4805, 4807, 4808 or 4810 All Goods 12% - No. 4/2006 CE dated 01 March, 2006 as amended by Notification No. 4/2008 dated 01-03-2008. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egate 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. of India in the ministry of finance and company affairs (dept of revenue) 8/2003-Central Excise, dated the 1' March, 2003. Explanation:-For removal of doubts, it is hereby clarified that the clearances of an aggregate quantity not exceeding 3500MT 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 notification. 4.3 The entire issue before us is in very narrow compass vis the above referred exemption notifications, is whether the entry at Sl No 90 of the exemption Notification prescribing nil rate of duty is absolute exemption from the payment of duty, appellant were barred from payment of duty as per Sl No 93 of the same notification. 4.4 The very same entries of the said notifications were considered by the tribunal in case of Balkrishna Paper Mills Ltd [2015 (329) ELT 468 (T-Mum)] and following was held: It would be seen from the above table that serial No. 93 prescrib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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. Thus, a bare reading of the above Section indicates that a manufacturer will not have an option to 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 from materials other than bamboo, hard woods, soft woods, reeds (other than sarkanda) or rags. 7. In the result, we hold that the appellant-assessees cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication 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 in respect of certain goods; One was the 1986 Notification that is being relied by the Department; The other was also started in the same year namely 1986 by notification number 132/1986, dated 1-3-86 and ultimately culminated into the 1992 Notification and is being relied by the Assessee. 19. The question is, does one notification or more specifically the 1986 Notification specifically or impliedly bar opting out the other exemption now being offered by the 1992 Notification. 20. In the present case, there is neither any specific, nor implied bar in the 1986 Notification from opting for exemption under the other notification. On the contrary, the explanation (ii) to the 1986 Notification suggests that in respect of packing materials, it is a kind of a residuary notification and is applicable in case an assessee is not taking advantage of any other exemption. It impliedly permits taking of advantage of any other exempti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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