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2023 (8) TMI 992 - AT - Central ExciseApplicability of exemption notification - bagasse based plain and pre-laminated boards manufactured and cleared by the respondent falling under Chapter 44109090 and 44101190 of Central Excise Tariff Act, 1985 - liable for payment of excise duty @8% adv. as provided under Notification No. 4/2006-CE dated 01.03.2006 (Sr. 87) or eligible for full exemption under notification No. 6/2006-CE dated 01.03.2006 (Sr.No.82)? HELD THAT:- The department have chosen Notification No. 4/2006-C.E. only on the ground that the description of the impugned product is matching with the entry in the said notification. However, it is noted that there is no dispute that the appellant is manufacturing bagasse board which is covered by Sl. No. 82 of Notification No. 6/2006. No evidence and reason has been produced by the department regarding the dispute that as to why the product manufactured by the respondent cannot be called as bagasse board - it is found that the impugned goods are eligible to get exemption without any condition under these two notifications. The respondent cannot be compelled to opt for a notification which has higher duty liability. The Hon’ble Supreme Court in various decisions held that the assessee can claim a notification which is more beneficial to them. Reference can be made to Supreme Court decision in M/S. ARVIND LIMITED. AND M/S. ARVIND POLYCOT LIMITED VERSUS CCE. - AHMEDABAD-III [2014 (6) TMI 271 - CESTAT AHMEDABAD] where it was held that when two exemption notifications, one granting absolute unconditional exemption to excisable goods and the other granting unconditional partial exemption to the said goods, are operative simultaneously, it is the choice of the appellant to opt for that notification which is more beneficial to him. In the present facts and circumstances of these appeals, provisions of Section 5A(1A) of the Central Excise Act, 1944 are not applicable. On the identical issue a matter came before the Hon’ble High Court of Gujarat in the case of DARSHAN BOARDLAM LTD. VERSUS UNION OF INDIA [2013 (4) TMI 326 - GUJARAT HIGH COURT] wherein the Hon’ble High Court held that pre laminated bagasse board is entitled for exemption under Notification No. 6/2006-CE (Sr. 82) dated 01.03.2006. Thus, merely because the revenue's appeal is pending in the Hon’ble Supreme Court, Hon’ble high court judgments do not loose its binding nature in view of the judicial discipline. Therefore, following the above judgments, it is held that respondent is entitled for exemption notification No. 6/2006-CE (Sr.No.82) dated 01.03.2006. The impugned order is upheld. The Revenue’s appeal is dismissed.
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