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2014 (12) TMI 1085 - CESTAT AHMEDABADBenefit of Notification No. 5/2006-CE dated 1.3.2006 - clearance of Silver till 16.1.202. Sr No 25 of Notifications - On being amended by Notification No 2/2012-CE dated 16.1.2012 and the word silver was deleted from the entry mentioned at Sr No,. 25 of the said Notification No. 5/2006-CE dated 1.3.2006. As a result of the said amendments, appellant started paying duty on silver from 17.1.2012 onwards - SCN issued for recovery of Central Excise duty on the clearances of silver during the period 1.3.2001 to 16.1.2012 under Section 11A(1) - whether appellant is eligible for the benefit of ‘nil’ rate duty on the ‘silver’ which arises/manufactured during the continuous process of manufacturing of copper cathode or not. - Held that:- It can be seen from the existing entries under Notification No. 5/2006 at Sr No. 25, exempts silver in their primary form and it is undisputed appellant had availed the benefit of this entry. The said Notification No. 5/2006-CE underwent an amendment wherein an entry No. 21C was inserted which indicated that sliver in any form is liable to concessional duty, which arises during copper smelting from copper ore or concentrate. For the period in question in this case i.e., 1.3.2011 to 16.1.2012 both the entries entry No 25 and entry No.21C were present in Notification No. 5/2006-CE. Reasoning recorded by the Adjudicating Authority are incorrect. First of all, when the Notification No. 5/2006-CE was amended, it did not amend the general entry No. 25 in the said notification; secondly, this lacunae was subsequently rectified by Notification No. 02/2012-CE dtd 16.1.2012 wherein the word ‘silver’ from entry No. 25 was deleted. It is undisputed that the appellant was manufacturing ‘silver’ in primary form during the manufacture of copper. When the two benefits are available to the appellant under the same Notification, the most beneficial entry suitable to him can be availed, is the settled law. We find that the apex court in the case of Share Medical Care [2007 (2) TMI 2 - SUPREME COURT OF INDIA] has held so. - Decided in favour of assesse.
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