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2024 (1) TMI 387 - AT - Central ExciseScope of exemption notification - Absolute exemption or conditional exemption - Liability to pay 5%/6% of the value of the goods cleared under Notification No. 108/1995-CE under Rule 6(i) of Cenvat Credit Rules, 2004 - eligibility of N/N. 04/2006-CE dated 01.03.2006 - whole case of the department is that when Notification No. 04/2006-CE was available to the appellant, which is the absolute notification, the appellant was supposed to clear the goods under said notification. Whether the Notification No. 04/2006-CE is absolute or conditional? - whether the appellant was mandatorily required to avail such notification? HELD THAT:- The issue that whether the exemption notification No. 04/2006-CE (Sr. No. 54 and 59) are conditional or otherwise, It was held that the said notification is conditional one in the appellant’s own case, for which the order was passed by this Tribunal vide final order No. 11450-11451/2023 dated 07.07.2023 [2023 (7) TMI 360 - CESTAT AHMEDABAD]. From the above judgment, it can be seen that this Tribunal has categorically held in para 4.2 of the order that Notification No. 04/2006-CE (Sr. No. 54 and 59) is conditional one, therefore, it is an option for assessee either to avail such exemption or not. In the present case, the goods were supplied under notification No. 108/1995-CE depending upon the nature of supplies and as per Rule 6(6)(iv) the provision of Sub Rule (1), (2), (3) and (4) shall not be applicable. Accordingly, the appellant is on one hand eligible for Cenvat credit and is not required to pay 5% in terms of Rule 6(3) of Cenvat Credit Rules, 2004 accordingly, the demand of 5% is not sustainable. Moreover, it is a settled legal position that when two beneficial provisions are available to the assessee, it is the choice of the assessee to avail the more beneficial provision, which is settled in SHARE MEDICAL CARE VERSUS UNION OF INDIA [2007 (2) TMI 2 - SUPREME COURT] and COLLECTOR OF CENTRAL EXCISE, BARODA VERSUS INDIAN PETRO CHEMICALS [1996 (12) TMI 66 - SC ORDER]. The demand of 5% is not sustainable, hence, the impugned order is set aside - Appeal allowed.
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