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TMI Blog2022 (6) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... n attached to the exemption 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 notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulfilment of the conditions itemized at Sl. No.10. Another entry at Sl. No.91 prescribed the concessional rate of duty of 12% advalorem, which was subject to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er arising out of the show cause notice dated 29.04.2011 was adjudicated vide order dated 25.04.2012, wherein the proposals made therein were confirmed by the learned Original Authority 3. Feeling aggrieved with the impugned order, the appellant has preferred this appeal before the Tribunal. 4. None appeared for the appellant. Heard Shri Sanjay Hasija, learned A.R. for the Revenue and examined the case records. 5. Section 5A of the Central Excise Act, 1944 recognizes two categorizes of exemption notification. The first category being that of an absolute exemption, where there was no condition attached to the exemption entry and the other one is a conditional exemption, which was subject to fulfilment of the conditions attached ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant 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 duty under nil rate vide serial no.90, the other aspects raised in all the show cause notices as also the Revenue s appeal fall flat . 7. In view of above discussions, we do not find any merits in the impugned order, insofar as it has confirmed the adjudged demands on the appellant. Therefore, the impugned order is set aside and the appeal is allowed in favour of the appellant. (Order pronounced i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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