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TMI Blog2008 (8) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... ntification of duty. - E/5405 & 5407/2004 - 704-705/2008-EX(PB) - Dated:- 12-8-2008 - S/Shri S.S. Kang, Vice-President and Rakesh Kumar, Member (T) Shri Sudhinder, Advocate, for the Appellant. Shri M.M. Singh, DR, for the Respondent. [Order per : Rakesh Kumar, Member (T)]. - The Appellants have a 'minicement plant using vertical shaft kiln' with capacity not exceeding 16,500 m.t. per annum as certified by Director of Industries, U.P., Kasganj-Etah Road, Nadrai, Etah. Notification 4/97-C.E. dt. 1-3-97 (S. No. 6) prescribes a concessional rate of duty of Rs. 200 per m.t. for cement manufactured in a cement plant with vertical shaft kiln, with installed capacity not exceeding 300 m.t. per day or 99,000 m.t. per annum. They filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 38/97-C.E. and on the basis, recovery of short paid duty of Rs. 3,52,476/- for the period from Oct'97 to March'98 from the Appellants alongwith interest on this duty; and (b) imposing penalty on them under Rule 173Q(1). 1.1 Another show cause notice dt. 11-6-98 for demanding short paid duty amounting to Rs.1,89,870/- was issued in respect of period from July'97 to Sept'97. 1.2 Both the Show Cause Notices were adjudicated by the Addl. Commissioner vide order-in-original dt. 28-2-2000, by which the duty demands were confirmed and penalty of equal amount was imposed. The Addl. Commissioner, vide two orders-in-original, each dt. 28-2-2000, confirmed two more duty demands on this issue, of Rs. 60,777/- and Rs. 5,35,701/- pertaining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led anything from the Department and that they continued to avail both the exemptions simultaneously as the Department did not raise any objection in respect of their declaration, that the Department has wrongly quantified the duty demands against the Appellants by forcing the exemption notification No. 38/97-C.E. upon them, while they, on learning that they cannot avail of exemption under notification No. 38/97-C.E. while availing notification No. 4/97-C.E., had opted to avail of 4/97 as this notification is more beneficial to them and that when two different exemptions are available to an assessee, it is open to the assessee to choose which one is more beneficial to him and avail that notification as in this regard, reliance is placed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cations simultaneously i.e. notification No. 4/97-C.E. as well as notification No. 38/97-C.E. without realizing that the benefit of notification No. 4/97 was available subject to condition that the benefit of notification No. 38/97-C.E. is not availed. Notification No. 4/97-C.E. prescribes a concessional rate of duty of Rs. 200/- per m.t. for mini cement plants with vertical shaft kiln with installed capacity not exceeding 300 m.t. per day and notification No. 38/97-C.E. which was also applicable to the appellants, prescribes concessional rate of duty from 60% of the normal duty to 80% of the normal duty, in respect of first clearances upto value of Rs. one crore in a financial year and the 'normal duty' as per the definition of this expres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are eligible for both the exemption notification and initially they were availing of Notification No. 4/97-C.E. and subsequently due to ignorance, they also filed a declaration for simultaneous availment of notification No. 38/97-C.E., it would not be correct, while denying simultaneous availment of both the notifications, to force the Appellant to avail the notification No. 38/97-C.E., whereas the Appellants wanted to continue under notification No. 4/97 as the same was more beneficial to them. The Tribunal in the case of Modi Xerox Ltd. v. CCE, Meerut reported in 1997 (94) E.L.T. 139 has held that when there are two different exemption notification available to an assessee, it is open to the assessee to choose to avail the one which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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