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TMI Blog2023 (10) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... that since there is an exemption to the same goods i.e. papers or paper boards under Sr. No. 90 which prescribed nil rate of duty, the appellant was supposed to avail such notification mandatorily. The contention of the department is that the exemption under Sr. No 90 is absolute exemption in terms of Section 5A (1A) of Central Excise Act, 1944, the appellant had no option except to opt for notification. Accordingly, the goods being under nil rate of duty, the appellant is not entitled for the cenvat credit. Accordingly, the cenvat credit was disallowed. 2. Shri Devashish K Trivedi, learned Counsel appearing on behalf of the appellant submits that the final product of the appellant i.e. Paper or paper board is covered under two exemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sarkanda) or rags. Nil 10 91. 48 Paper and paperboard 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 from materials other than bamboo, hard woods, soft woods, reeds (other than sarkanda) or rags. 8% 11 4.1 From the plain reading of the above exemption notification entries it is clear in our mind that both exemption entries carry conditions for allowing either nil rate of duty or 4 % of duty therefore there is no doubt that both the exemption entries are conditional. The contention of the Revenue is based on Section 5A (1A) which prescribes that in case of absolute exemption the asseessee has no option except to avail such exempti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (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 Ministry of Finance and Company Affairs (Department of Revenue) No. 8/2003-Central Excise, dated the 1st March, 2003. Explanation .-For removal of doubts, it is hereby clarified that the first clearances of an aggregate quantity not exceeding 3500 metric tonnes shall not include clearances of any paper and paperboard or articles made therefrom which attract nil rate of du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it of Notification 8/2003-CE dated 1.3.2003. The Revenue's 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 relevant portion of Section 5A is reproduced below: "5A. Power to grant exemption from duty of excise.- (1) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette, exempt generally either absolutely or subject to such conditions (to be fulfilled before or after removal) as may be specified in the notification, excisable goods of any specified description from the whole or any part of the duty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 form materials other than bamboo, hard woods, soft woods, reeds (other than sarkanda) or rags. 7. In the result, we hold that the appellant-assessees cannot be forced to pay duty as per serial No. 90 of Notification 4/2006 and they have option to pay the duty under other numbers, viz. 91 and 93. Since we have taken the view that the appellant cannot be forced to pay the duty under nil rate vide serial no. 90, the other aspects raised in all the show cause notices as also th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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