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TMI Blog2023 (10) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... dered by this Tribunal in the case of BALKRISHNA PAPER MILLS LTD, LAXMI BOARD AND PAPER MILLS LTD, COMMISSIONER OF CENTRAL EXCISE, THANE-I VERSUS COMMISSIONER OF CENTRAL EXCISE, THANE I AND LAXMI BOARD AND PAPER MILLS LTD [ 2015 (11) TMI 210 - CESTAT MUMBAI ] where it was held that 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. There are no merit in the impugned order. Consequently, the impugned order is set aside. Appeals are allowed . - HON'BLE Dr. D. M. MISRA, MEMBER (JUDICIAL) And HON'BLE Mrs. R. BHAGYA DEVI, MEMBER (TECHNICAL) For the Appellant : Sh. Kuryan Thomas, Advocate For the Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... department that the CENVAT Credit availed on inputs and utilized the same in discharging duty for clearance of the goods availing concessional rate of duty inadmissible cannot be sustained. In support, he has referred to the following decisions : - Balakrishna Paper Mills Ltd vs. CCE, Thane-I 2015 (329) ELT 468 (Tri. Mum.) Padmavati Pulp and Paper Mills vs. CCE, Thane-I 2015-TIOL-2434-CESTAT-MUM. Balakrishna Paper Mills Ltd vs. CCE, Thane-I 2018-TIOL-3156-CESTAT-MUM. Share Medical Care vs. U.O.I. 2007 (209) ELT 321 (SC) 4. The ld. A.R. for the Revenue reiterates the findings of the ld. Commissioner. 5. Heard both the sides and perused the records. 6. The short issue involved in the present appeals for de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amboo, hard woods, soft woods, reeds (other than sarkanda) or rags. 8% 11 92. .. 93. 4802, 4804, 4805, 4807, 4808 or 4810 All goods 8% ANNEXURE 10. (1) This exemption shall apply only to the paper and paperboard or articles made therefrom cleared for home consumption from a factory, in any financial year, up to first clearances of an aggregate quantity not exceeding 3500 Metric Tonnes. (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tached the said serial number. The first condition is that this 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. The second condition is the manufacturer who avails the exemption under Notification 8/2003-C.E., dated 1-3-2003 will not be eligible for the present exemption. Serial No. 90 prescribes nil rate of duty. Further, the nil rate of duty is subject to two conditions prescribed under serial No. 10. The first condition is that nil rate is applicable in any financial year up to first clearances of an aggregate quantity not exceeding 3500 MT. The second condition is that the manufacturer shall not be availing the benefit of Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (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. Thus, a bare reading of the above Section indicates that a manufacturer will not have an option to pay the duty only where the goods are exempt and the exemption granted is absolute. In the present case, serial No. 90 has two conditions. The first condition limits exemption for goods cleared for home consumption from a factory in any financial year upto first clearances of an aggregate quantity not exceeding 3500 MT. Further, there is another condition about non-availment of Notification 8/2003. In our view, in view of the above m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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