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TMI Blog2008 (10) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... ed captively for further manufacture of paper and paper boards. The appellants claimed exemption in respect of such cuttings and trimmings under Notification No. 67/95 which granted exemption in respect of goods captively used in the manufacture of final product, subject to the condition that the final products are not exempted from duty. The appellants have also availed Modvat credit on capital goods amounting to Rs. 42,610/- during the period April 2000 to December 2000. They were however issued a show cause notice stating that since they were clearing their final goods under exemption, they were not entitled to the benefit of Notification No. 67/95 in respect of trimming and cuttings used captively and Modvat credit was also inadmissible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Tri.-Chennai) = 2007 (7) S.T.R. 190 (Tri.-Chennai) wherein it has been held that benefit of notification, not claimed at the initial stage, cannot be denied as it can be claimed at appellate stage also. Reference was invited to the Supreme Court decision in the case of Share Medical Care - 2007 (209) E.L.T 321 (S.C.) wherein also it was held that even if the appellants does not claim the benefit under a particular notification at initial stage, he is not debarred, prohibited or estopped from claiming such benefit at later state. In view of this it was submitted that the benefit of Notification cannot be denied to them. As regards modvat credit, it was submitted that the credit has been denied on the ground that there is no evidence to sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laimed the benefit of Notification No. 77/85 at the relevant time by filing a classification list and as such the department never had an opportunity to verify as to whether the appellants did satisfy the conditions specify in the notification. It has also not been disputed by the appellants that they had also not filed any declaration which again prevented the department from verifying their compliance with the conditions subject to which benefit from exemption from duty of excise was available under Notification No. 77/85. Reference was also invited to the Supreme Court decision in the case of Indian Aluminium Company, Ltd., 1991 (55) E.L.T. 454 (S.C.) wherein the Apex Court, while deciding the case relating to refund of octroi paid by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bited or estopped from claiming such benefit at later stage. In such a situation, benefit cannot be denied merely because it has been claimed at a later stage. However, we do agree that the benefit can be extended only after the conditions specified in the notification are verified. In case of Gujarat High Court decision and others, it appear that the conditions were not verifiable as they related 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 can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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