Custom, Excise & Service Tax TribunalVyanktesh Board Mills Pvt. Ltd. vs Commissioner Of Central Excise-Nagpur on 20 April, 2022Excise Appeal No. 798 & 1441/2012\n\n                                           1\nCUSTOMS, EXCISE & SERVICE TAX APPELLATETRIBUNAL,\n                                       MUMBAI\n                        REGIONAL BENCH - COURT NO. I\n\n                        Excise Appeal No.798 of 2012\n\n (Arising out of Order-in-OriginalNo.26/2012/Cdated 24.04.2012passed by the\n Commissioner of Customs & Central Excise, Nagpur)\n\n M/s Bazargaon Paper & Pulp Pvt. Ltd                      .... Appellant\n Bazargaon Amravati Road, Nagpur-440001\n\n                                          Versus\n\n Commissioner of Central Goods &...RespondentService Tax, Palghar\n Telangkhedi Road, Civil Lines, Post Box No.81,\n Nagpur-440001\n\n Appearance\n Shri S. N. Kapoor, Advocate for the Appellant\n Mrs. AnuradhaParab, Authorized Representative for the Respondent\n\n                                         WITH\n\n                       Excise Appeal No. 1441 of 2012\n\n (Arising out of Order-in-Original No.41/2012/C dated 29.05.2012 passed by the\n Commissioner of Customs & Central Excise, Nagpur)\n\n Vyanktesh Board Mills Pvt. Ltd.                          .... Appellant\n 314/10, Dhanlaxmi Niwas, Khare Town, Near\n Dhanwantari Hospital, Dharampeth, Nagpur-440010\n                                          Versus\n\n Commissioner of Central Goods &                          ...Respondent\n Service Tax, Palghar\n Telangkhedi Road, Civil Lines, Post Box No.81,\n Nagpur-440001\n\n Appearance\n None for the Appellant\n Mrs. Anuradha Parab, Authorized Representative for the Respondent\n\n CORAM:HON'BLE MR. S.K. MOHANTY, MEMBER (JUDICIAL)\n HON'BLE MR. P. ANJANI KUMAR, MEMBER (TECHNICAL)\n\n         FINAL ORDER NO. A/85830-85831/2022\n\n                                                   Date of Hearing: 20.04.2022\n                                                   Date of Decision: 20.04.2022\n\n\n Per: S. K. Mohanty\n\n\n        The appellants herein are inter alia, engaged in manufacture and\n clearance of Paper and Paper Board, falling under Chapter Heading No. 48\n                                              Excise Appeal No. 798 & 1441/20122of theSchedule to the Central Excise Tariff Act, 1985attracting Central\nExcise duty at different rates during the period in dispute. For\nmanufacture of such excisable goods, the appellants got registered\nthemselves with the Central Excise Department.        The appellants avail\ncenvat credit of Central Excise duty paid on the inputs and capital goods\nand service tax on the input service in terms of the provisions contained in\nthe Cenvat Credit Rules, 2004.The         goods manufactured by the\nappellants were covered by three entries of exemption Notification\nNo. 4/2006-C.E., dated 01.03.2006. The entry at Sl. No. 90\nprescribed the concessional rate of duty @ 8% advalorem, which\nwas subject to fulfilment of the conditions itemized at Sl. No.10\ntherein. Another entry at Sl. No.91 prescribed the concessional rate\nof duty of 12% advalorem, which was subject to the condition No.11. The third entry at Sl. No.93, which was unconditional, also\nprescribed concessional rate of 12% advalorem.1.1. In the Union Budget for the year 2008-09, the Notification No.\n4/2006-C.E., at Sl. No. 90 was amended by Notification No. 4/2008-C.E. dated 01.03.2008 in changing the rate of duty from 8% to\n'NIL', retaining all other conditions as per the earlier notification.\nCorresponding changes were also made in the rate of duties\nprescribed vide entries at Sl.No.91 & 93, which were changed from\n12% advalorem to 8% advalorem. No changes were made in the\ncolumns relating to conditions in both the said entries.                  By\nNotification No. 58/2008-C.E., dated 07.12.2008, Notification No.\n4/2006-C.E. was amended in order to substitute the rate of duty of\n8% by the rate of 4% advalorem.2.    During the disputed period, the appellants made clearances of\npaper on payment of appropriate duty as per the aforementioned\nnotifications, by availing cenvat credit of Central Excise duty paid\non the inputs and capital goods received in the factory premises.\nPayment of Central Excise duty by the appellants during the\ndisputed period was objected to by the Department on the ground\nthat the appellants should have self-assessed at 'NIL" rate of duty\nunder Sl. No.90 of notification dated 01.03.2006, as amended.\nAccordingly, show cause proceedings were initiated against the\nappellants, calling upon them to show cause as to why self-\nassessment of the goods cleared during the period 01.04.2008 to\n31.03.2011 should not be assessed at "NIL" rate of duty in terms of\n                                                    Excise Appeal No. 798 & 1441/20123entry    at   Sl.   No.   90   of   Notification    No.    4/2006-C.E.,      dated\n01.03.2006. Referring to the provisions ofSection 5A (1A)of the\nCentral Excise Act, 1944 the SCNs have alleged that as per\ncondition No. 10 of Sl. No.90 of Notification No. 4/2006, the first\nclearance of 3500 MTs during any financial year was absolutely\nexempted without any further conditions w.e.f. 01.03.2008.                     The\nmatter arising out of the show cause notices were adjudicated vide\nthe impugned orders, wherein the proposals made therein were\nconfirmed by the learned Original Authority. Feeling aggrieved with\nthe impugned orders, the appellants have preferred these appeals\nbefore the Tribunal.3.      None appeared for the appellant. Heard Mrs. Anuradha Parab\nlearned A.R. for the Revenue and examined the case records.4.Section 5Aof the Central Excise Act, 1944 recognizes two\ncategorizes of exemption notification. The first category being that\nof an "absolute" exemption, where there was no condition attached\nto the exemption entry and the other one is a "conditional"\nexemption, which was subject to fulfilment of the conditions\nattached to the exemption entry.               In the present case, the\nexemption entry at Sl. No.90 of Notification No. 4/2006-Central\nExcise was attached with two conditions for availing of the benefit of\nduty exemption and therefore, it was a conditional exemption and\nnot an absolute exemption, as contemplated by Section 5A(1A) ibid.\nSince, the appellants have opted for payment of duty on clearance\nof the finished products and availed cenvat credit of Central Excise\nduty, such option exercised by the appellants cannot be questioned\nby the department inasmuch as there was no stipulation contained\nin the subject notification that only condition No. 90 appended\nthereto had to be followed and not otherwise. Thus, in our\nconsidered opinion, the appellants have correctly assessed the duty\nliability as provided under Sl. No. 93 contained in notification dated\n01.03.1998, as amended. Thus, there was no contravention of the\nCenvat statute. Further, it is not the case of Revenue that the duty\namount collected by the appellants was not deposited with the\nGovernment Exchequer. Hence, under such circumstances, the\nprovisions of Section 11D ibid cannot be invoked for recovery of the\nduty amount in question.Excise Appeal No. 798 & 1441/201245.     We find that the issue arising out of the present dispute is no\nmore res integra, in view of the order Nos. A/607-611/15/EB dated\n05.02.2015, passed by the Tribunal in the case ofBalkrishna Paper\nMills Ltd. &Ors. Vs. Commissioner of Central Excise, Thane-I,\nreported in 2015-TIOL-1100-CESTAT-MUM. The relevant paragraph\nin the said order is extracted herein below:"7. In the result, we hold that the appellant-assessees\n     cannot be forced to pay duty as per serial No.90 of\n     Notification 4/2006 and they have option to pay the duty\n     under other numbers, viz. 91 and 93. Since we have taken\n     the view that the appellant cannot be forced to pay the\n     duty under nil rate vide serial no.90, the other aspects\n     raised in all the show cause notices as also the Revenue's\n     appeal fall flat".6.     In view of above discussions, we do not find any merits\nin the impugned order, insofar as the adjudged demands\nwere confirmed on the appellants. Therefore, the impugned\norders are set aside and the appeals are allowed in favour of\nthe appellants.(Operative part of the order pronounced in open court)\n\n\n\n\n                                                      (S.K. Mohanty)\n                                                    Member (Judicial)\n\n\n\n                                                   (P. Anjani Kumar)\n                                                  Member (Technical)\n\n\nSm