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TMI Blog2018 (5) TMI 474X X X X Extracts X X X X X X X X Extracts X X X X ..... they were heard together and are disposed by this common order. 2. Brief facts are that M/s. Kovai Maruthi Paper and Boards (P) Ltd. and M/s. Saraswathi Udyog were issued show cause notices alleging that credit was wrongly taken and utilized on inputs and input services for the manufacture of exempted goods cleared for the period 1.4.2010 to 22.6.2010. According to the department, the appellants who are engaged in manufacture of kraft paper are eligible for exemption of duty upto first clearance of 3500 MTs in any financial year as per Notification No. 4/2006-CE dated 1.3.2006 (Sl. No. 90) as amended and read with condition No. 10 thereof. That this exemption though mandatory, the appellants did not avail the exemption subject to conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Udyog India Ltd., since the show cause notice proposed to debit the credit of duty taken by them, these appellants filed refund claim praying to refund the same to their buyers. After due process of law, the original authority sanctioned the refund but ordered to transfer the amount to Consumer Welfare Fund as the refund is hit by principles of unjust enrichment. Against this, the appellant as well as the department filed appeals before Commissioner (Appeals). Vide orders impugned in appeal Nos. E/40635 & 40666/2013, the Commissioner (Appeals) directed modification of the order passed by the original authority to the extent that refund claim is liable for rejection and consequently held that there is no need for crediting the amount to Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty passed on by M/s. Kovai Maruthi Paper and Boards Pvt. Ltd. who have cleared goods on payment of concessional rate of duty under Sl. No. 91 of Notification No. 4/2006. 7. The ld. AR Shri S. Govindarajan reiterated the findings in the impugned order. 8. Heard both sides. 9. The common issue that arises for consideration in all these appeal is whether the assessees are eligible to avail exemption as per Notification No. 4/2006 under Sl. No. 91 and clear the goods on concessional payment of duty or whether it is mandatory to avail 'nil' rate of duty as provided under Sl. No. 90. 10. For proper appreciation of the dispute, we reproduce the relevant entries and conditions of Notification 4/2006:- 90 48 Paper and paperboard or artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e whole of excise duty under any other notif ication. 11. (1) The exemption shall not be applicable if the factory in which the said goods are manufactured has a plant attached thereto for making bamboo or wood pulp. (2) 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 erstwhile Ministry of Finance and Company Affairs (Department of Revenue) No. 8/2003- Central Excise, dated the 1st March 2003. 11. The Tribunal in the case of Balakrishna Paper Mills and Others (supra) has discussed the very same issue and held as under:- "It would be seen from the above table that serial No. 93 prescribes the duty rate without any conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otification, excisable goods of any specified description from the whole or any part of the duty of excise leviable 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 removal) as may be specified in the Notification from the whole or any part of the duty. Further, a reading of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the duty under nil rate vide serial no. 90, the other aspects raised in all the show cause notices as also the Revenue's appeal fall flat." 12. The said view has been followed in the decisions cited by the ld. counsel for the appellants. Following the same, we are of the view that the demands made in Appeal No. E/40005 and 40013/2013 cannot sustain and requires to be set aside, which we hereby do. Consequently, the appeals filed by department in Appeal No. E/40079 and 40080/2013 are dismissed. As the impugned orders in Appeal No. 40005 and 40013/2013 are set aside, consequently the impugned orders in Appeal Nos.E/42681 to 42683/2014 are set aside. 13. The assessees have sought permission to withdraw appeal Nos. E/40635 and 40666/2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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