TMI Blog1990 (9) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... ts (including paperboard, millboard, strawboard, cardboard and corrugated board) in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power- (1) Uncoated and coated printing and writing paper (other than poster paper) 25% ad valorem. (2) Paper board and all other kinds of paper including paper of paper boards which have been subjected to various treatments such as coating, impregnating, corrugation, creping and design printing not elsewhere specified. 40% ad valorem." 2. In exercise of powers conferred by sub-rule (1) of Rule 8 of the Central Excise Rules, 1944 the Central Government published Notification No. 42/73-CE dated March 1, 1973 providing that in respect of paper all sorts, other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing paper other than poster paper, while Item No. 45 covered paper boards and all paper (other than those specified in Item No. 44). The exemption available under Notification No. 198 of 1976 and Notification No. 216 of 1976 was available only when the manufacturer clears from one or more factories the goods in excess of base clearances. 3. The Exemption Notification No. 42/73 was replaced by Exemption Notification No. 129/77 dated June 18, 1977. By Notification No. 129/77, the Government of India exempted paper other than paper boards, cigarette tissue, glassine paper, grease proof paper, coated paper and paper of substance not exceeding 25 grammes per square metre from so much of the excise leviable as is in excess of sixty-six and two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise granted the refund as claimed by the petitioner Company, by two orders dated April 17, 1978 and May 31, 1978. 4. On August 29, 1978, the Assistant Collector, Central Excise, Pune Division, served show cause notice upon the petitioners to explain why the refund granted should not be recovered as the order of refund was irregular. The Company was also served with three other show cause notices dated August 29, 1978, January 25, 1979 and May 20, 1979 demanding duty which, according to the Assistant Collector escaped payment on a wrong assumption that the Company was entitled to the advantage of exemption under Notification No. 198/76 and Notification No. 216/76. The Company made representation to the Government of India against the is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess of base clearances was satisfied. We find considerable merit in the submission of the learned counsel. As mentioned hereinabove, the petitioners were paying excise duty on the manufacture of grease proof and glassine paper by seeking advantage of exemption prescribed under Notification No. 42/73 dated March 1, 1973. Notification No. 216/76 dated July 24, 1976 entitled the Company to claim exemption provided the requirement that the Company should clear the manufactured goods in excess of base clearances was satisfied. The Company could not have availed of the benefit of Notification No. 216/76 as long as the benefit of Notification No. 42/73 was availed of. Notification No. 216/76 clearly provided that the advantage of exemption under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice pose the following question: "Whether a manufacturer of paper availing of the concession under Notification No. 138/77 in respect of some of the varieties of paper manufactured by him, can also simultaneously get the benefit of concession under Notification No. 198/76 in respect of certain other varieties of paper produced by him for which he does get the exemption under Notification No. 128/77, or not?" The question was anwered in the negative by stating that the manufacturer of paper and paper board who avails of the concession under Notification No. 128 and 129/77 is debarred from availing of the benefit under Notification No. 198 and 216/76 even in respect of varieties of paper for which he does not get the exemption under Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch exemption was availed of under Notification No. 42/73. The Company was entitled to advantage of Notification No. 42/73 till it was superseded by Notification No. 129/77. The petitioners sought refund of duty only when the advantage of exemption Notification No. 216/76 was available with effect from September 30, 1977. In our judgment, all the four show cause notices, in these circumstances, cannot be sustained and are required to be quashed. 7. Accordingly, petition succeeds and show cause notice dated August 29, 1978 demanding back the refund paid and three show cause notices dated August 29, 1978, January 25, 1979 and July 3, 1979 are quashed. In the circumstances of the case, there will be no order as to costs. - - TaxTMI - T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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