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2018 (12) TMI 927 - AT - Central ExciseRecovery of CENVAT Credit utilized on inputs and capital goods - It is the case of the Revenue that Sl. No. 90 of Notification 04/2006-CE being absolute in nature, the assessee ought to have availed the same and had no option to pay duty as per Sl. No. 91 of the above Notification - whether the disallowance of CENVAT Credit to the tune of ₹ 51,35,255/- and consequent demand of penalty under Rule 15(2) is justifiable? Held that:- This Bench had occasion to decide a similar issue, in the case of M/s. Sripathi Paper & Boards Vs. C.C.E. & S.T., Tirunelveli [2018 (9) TMI 891 - CESTAT CHENNAI], where it was held that A bare reading of Sl.No. 90 of the Notification, it is found that the same is controlled by the condition No. 10. While the rate of duty on the goods described at Sl.No. 90 are ‘nil’ ie., exempted, the goods at Sl.No. 91 are taxed at 4%; Sl.No. 90 is controlled by condition No. 10 whereas Sl.No. 91 is controlled by condition No. 11. The absolute exemption Notification, N/N. 29/2004-CE dated 09.07.2004 as amended by Notification No. 58/2008-CE dated 07.12.2008 and another Notification No. 59/2008-CE dated 07.12.2008, referred to emanates is mandatorily required to be availed by the assessee, whereas, the exemption Notification No. 04/2006 in the case on hand, provides two options with different duty liabilities and different conditionalities. The said Notification thus is an optional one in the hands of the assessee and is not an absolute exemption Notification. Appeal dismissed - decided against Revenue.
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