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2015 (11) TMI 712 - CESTAT MUMBAI

2015 (11) TMI 712 - CESTAT MUMBAI - TMI - Duty demand - option to avail exemptions - Clearance of goods under serial No. 93 of Notification No. 4/2006-CE dated 01/03/2006 - Imposition of penalty - Held that:- s in view of the above mentioned two conditions, it cannot be said that serial No.90 provides absolute exemption to paper and paper board or articles made therefrom manufactured, starting from the stage of pulp, in a factory, and such pulp contains not less than 75% by weight of pulp made f .....

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he appellant-assessee, there is no question of recovery of interest or imposition of penalty - Decided in favour of assessee. - APPEAL NO: E/1274 & 1411/2009 - Dated:- 29-6-2015 - Shri P.K. Jain, Member (Technical) And Shri S. S. Garg, Member (Judicial) For the Petitioner : Shri Rajesh Ostwal, Advocate For the Respondent : Shri N.N Prabhudesai, Superintendent (AR) ORDER Per: P.K. Jain: Brief facts of the case are that the appellants are engaged in the manufacture of craft paper and they were cle .....

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d in finished goods as on 01/03/2008 amounting o ₹ 4,41,825/- (Basic), ₹ 8,836/- (P.Ed. Cess), and ₹ 4,419/- (SHE Cess), totaling to ₹ 4,55,080/- from the assessees Cenvat account balance of ₹ 9,22,342/- (Basic), ₹ 17,709/- P.Ed. Cess), Rs. Nil (SHE Cess) totaling to ₹ 9,40,051/- and balance amount of ₹ 4,80,517/- (Basic) ₹ 8,873/- (P.Ed. Cess), and ₹ 4,419/- (SHE Cess) totaling to ₹ 4,84,971/- (Rupees four lakhs eighty four thou .....

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ferential amount of (SHE Cess) totaling to ₹ 1,31,011/- (Rupees One lakh thirty one thousand eleven only from the assessee under Rule 14 of Cenvat Credit Rules, 2004 read with section 11A of the Central Excise Act, 1944. iiiI order denial of and recovery of the Cenvat credit of the duty paid on inputs/input services availed by the assessee amounting to ₹ 6,72,482/- (Basic), ₹ 13,746/- (P.ED.Cess) and ₹ 6,575/- (SHE Cess) totaling to 1 6,92,803/- (Rupees six lakhs ninety t .....

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ty, P.Ed. Cess, SHE Cess raised in terms of Section 11D of the Central Excise Act, 1944. v. I order for the recovery of the interest at appropriate rate on the amounts mentioned at Sr. No. ii to iii under Rule 14 of Cenvat Credit Rules, 2004 read with Section 11AB of the Central Excise Act, 1944. vi. I impose a penalty of ₹ 1,31,011/- (Rupees one lakh thirty one thousand eleven only) for demand confirmed at Sr. No. ii above and a penalty of ₹ 6,92,803/- (Rupees six lakh ninety two th .....

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at the issue involved in this has already been decided by this Tribunal in the case of Balkrishna Paper Mill Ltd. & Ors. vs. Commissioner of Central Excise vide Order No. A/607-611/15/EB dated 05/02/2015. The relevant part of the order are as under: 6. For proper appreciation of the dispute, we reproduce the relevant entries and conditions of Notification 4/2006:- 90 48 Paper and paperboard or articles made therefrom manufactured, starting from the stage of pulp, in a factory, and such pulp .....

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xemption 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. The exemption shall not be applicable to a manufacturer of the said goods who avails of the exemption under the notification of the Government of India in the Ministry of Finance and Company Affairs (Department of Revenue) No. 8/2003-Central Excise, dated the 1st March .....

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exemption shall not be applicable to a manufacturer of the said goods who avails of the exemption under the notification of the Government of India in the erstwhile Ministry of Finance and Company Affairs (Department of Revenue) No. 8/2003-Central Excise, dated the 1st March 2003. It would be seen from the above table that serial No.93 prescribes the duty rate without any conditions whatsoever. Further, serial No.91 prescribes duty rate subject to condition at serial No.11. There are two conditi .....

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serial No.10. The first condition is that nil rate is applicable in any financial year upto 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 8/2003-CE dated 1.3.2003. The Revenues contention is that for the initial clearance of 3500 MT, the rate of duty is nil and there are no conditions for the said clearance and hence the provisions of Section 5A(1A) will come into play. The relevan .....

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thereon: (1A) For the removal of doubts, it is hereby declared that where an exemption under sub-section (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. It would be seen from the said Section 5A that the Central Government is empowered to exempt generally either absolutely or subject to such conditions (to be fulfilled before or after .....

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