TaxTMI 
TaxTMI 
2018 (5) TMI 474
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....lved in all these appeals being connected, 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....
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....s. Kovai Maruthi Papers & Board and M/s. Saraswati 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 tha....
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....r the reason that they have rightly availed credit of 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 N....
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....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 duty or are exempt from the 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 (Depart....
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....er 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 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 ....
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....her 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 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, w....