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TMI Blog2023 (10) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... 5A (1A) which prescribes that in case of absolute exemption the asseessee has no option except to avail such exemption. In the present case, both the exemption entries are subject to certain conditions therefore both the entries have absolute exemption. In this position it is an option to the appellant to choose any one of the exemption entries. Therefore, in the present case the appellant has chosen to avail the exemption under Sr No. 91 is absolutely legal and correct. There is no doubt that the appellant has availed the exemption under Sr. No 91 correctly and legally - they are entitled for the cenvat credit under Cenvat Credit Rules, 2004. Appeal is allowed. - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. C.L. MAHAR, MEMBER ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sr. No. 90 which attracts a nil rate of duty is unconditional. Therefore, the demand on this base of cenvat credit is not sustainable. He submits that the issue is clearly covered by this Tribunal s decision in the case of Balkrishna Paper Mills Ltd vs. Commissioner of C.Ex., Thane I 2015 (329) ELT 468 3. Shri Prabhat K Rameshwaram, Commissioner (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order. 4. We have carefully considered the submission made by both sides and perused the records. We find that the limited issue to be decided in this case is that availing the cenvat credit by the appellant where the appellant has availed the option of Sr No. 91 of Notification 04/2006 CE is correct or they we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tries have absolute exemption. In this position it is an option to the appellant to choose any one of the exemption entries. Therefore, in the present case the appellant has chosen to avail the exemption under Sr No. 91 is absolutely legal and correct. 4.2 The identical issue related to the same product and involving the same exemption notification has been considered by this Tribunal in the case of Balkrishna Paper Mills Ltd (Supra) wherein the Tribunal has passed the following order :- 6 . For proper appreciation of the dispute, we reproduce the relevant entries and conditions of Notification 4/2006:- 90 48 Paper and paperboard or articles made therefrom manufactured, starti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reby clarified that the first clearances of an aggregate quantity not exceeding 3500 metric tonnes 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 notif ication. 11. (1) The exemption shall not be applicable if the factory in which the said goods are manufactured has a plant attached thereto for making bamboo or wood pulp. (2) The exemption shall not be applicable to a manufacturer of the said goods who avails of the exemption under the notification of the Government of India in the erstwhile Ministry of Finance and Company Affairs (Department of Revenue) No. 8/2003- Central Excise, dated the 1st March 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y either absolutely or subject to such conditions (to be fulfilled before or after removal) as may be specified in the notification, excisable goods of any specified description from the whole or any part of the duty of excise leviable thereon: ------ (1A) For the removal of doubts, it is hereby declared that where an exemption 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. It would be seen from the said Section 5A that the Central Government is empowered to exempt generally either absolutely or subject to such conditions (to be fulfilled before o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 8 . In view of the above position, the appellant-assesseess' appeals are allowed and the Revenue's appeal is dismissed. 4.3 In view of the above decision and our observation made herein above there is no doubt that the appellant has availed the exemption under Sr. No 91 correctly and legally. Consequently, they are entitled for the cenvat credit under Cenvat Credit Rules, 2004. 5. Accordingly, the impugned order is not sustainable, hence, the same is s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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