2004 (4) TMI 350

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....stated that appellants are manufacturers of straw boards falling under sub-heading No. 4807.92 of the Central Excise Tariff Act and they were availing benefit of Notification No. 7/97-C.E., dated 1-3-1997 which was replaced by Notification No. 16/97, dated 1-4-1997. The Assistant Commissioner without passing any order on their declaration under Rule 173B directed them to pay duty at tariff rate without any exemption for all clearances after Rs. 1 crore on the ground that Notification No. 4/97-C.E. specifically excludes the exemption thereunder to parties who were availing exemption under Notification No. 16/97. They made a representation vide their letter dated 26-11-1997 to the Assistant Commissioner. However, the Assistant Commissioner vi....

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....able as after thought - Additional claim for concessional assessment made during the adjudication proceedings - Benefit denied holding the claim was an after thought. Thus benefit of exemption should be extended if eligibility criteria is satisfied. (2)        Hindustan Tyresoles v. CCE, Belgaum [2001 (131) E.L.T. 699] where it was held that SSI exemption could be claimed at any stage. SSI exemption is a privilege and cannot be converted into disadvantage and an exemption in the nature of an option to the tax payer, cannot be converted into an obligation. (3)        Mamta Cement Co. v. CCE [2000 (117) E.L.T. 157] wherein it was held that option for a particular noti....

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.... 4. We have carefully considered the submissions made by both the sides. We find that the Commissioner (Appeals) has given the findings that the appellants are not entitled to the benefit of Notification No. 4/97-C.E., dated 1-3-1997 in terms of Conditions 13 and 14 of the said notification because they have availed themselves of the benefit of exemption under Notification No. 16/97-C.E., dated 1-4-1997. We find that while exercising the option under Notification No. 16/97-C.E., dated 1-4-1997, it was open for the appellants whether to avail the benefit of Notification No. 4/97 or Notification No. 16/97. Notification No. 16/97 is an optional notification and it clearly puts a condition in Para 2(i) of the Notification that manufacture....