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TMI Blog2008 (10) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... rwal, Member (T) Shri S.M. Vaidya, JDR, for the Appellant. Shri Saket Patwari, Advocate, for the Respondent. [Order per: K.K. Agarwal, Member (T)]. - This is an appeal filed by the Revenue. 2. The brief facts of the case are that the respondents were engaged in the manufacture of uncoated kraft paper and were availing exemption from payment of duty vide Notification No. 3/2001-C.E., dated 1-3-2001 for clearance of kraft paper up to first 3500 MT during financial year 2001-02. During the course of manufacture certain cuttings and trimmings were arising which were being used captively for the manufacture of kraft paper and were being cleared duty free by claiming exemption under Notification No. 67/95, dated 16-3-95 on cuttin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Ltd. - 1992 (60) E.L.T. 550 (Guj.) wherein the Hon'ble High Court held that even before removal of the goods, the manufacturer must apply for exemption and claim exemption from payment of duty by specifying the conditions of the notification. Once the goods are removed it would be impossible for the department to verify as to whether the product in respect of which refund claim is made satisfies the conditions laid down in the notification. Similarly, in the case of Venus Industries - 2002 (149) E.L.T. 921, the Tribunal held that benefit of exemption notification is a conditional one as on fulfilment of conditions specified in the notification. It is not disputed that appellants have not claimed the benefit of Notification No. 77/85 at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otification No. 10/96 cannot be extended when the same was never claimed in their declaration filed under Rule 175B of the Central Excise Act. 4. Ld. advocate for the respondents submitted that it is their claim that they are entitled to benefit of Notification No. 67/95 as the exemption is quantity based wherein they are still required to pay duty on crossing the exemption limit and is not fully exempted. However, in alternative exemption under Notification No. 10/96 is available to them as has been clarified by the Board vide Circular No. 61/5/2001-CX4, dated 1-3-2001. He referred to the decision of the Tribunal in the case of Venus Tyres Pvt. Ltd. reported in 1999 (31) RLT 21 (CEGAT), Cipla Ltd. - 2007 (218) E.L.T. 547 (Tri.-Chen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecified in the notification are verified. In case of Gujarat High Court decision and others, it appear that the conditions were not verifiable as they relate to chemical composition etc. However, whether the conditions are verifiable or not can be determined only by the assessing authority/original adjudicating authority who has to record findings to that effect. If he is able to satisfy himself on the basis of records and other evidences that the conditions are verifiable, the benefit of exemption cannot be denied. Since in this case there is no finding as to whether the conditions were satisfied or not, we remand the matter back to the original adjudicating authority to consider the claim of benefit of Notification No. 10/96 as clarified ..... X X X X Extracts X X X X X X X X Extracts X X X X
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