2018 (9) TMI 891

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....resent appeals as could be gathered from the contentions in SCN, are that:- i) the assessees had failed to avail the mandatory exemption for the first clearances of an aggregate quantity of 3500 MTs of Kraft paper for the financial year 2010-11 in terms of Sl.No. 90 of Notification No. 4/2006-CE but have paid duty for the clearances of finished goods during the period from 01.04.2010 to 27.05.2010 in terms of Sl.No. 91 of the said Notification, in contravention of provisions of Section 5A (1A) of the Act. ii) the assessee is not eligible for Cenvat credit on the inputs lying in stock, on the inputs in process and on the inputs contained in the final product lying in stock as on 01.04.2010 as per Rule 11 (3) of CCR. iii) The assessee is n....

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.... of condition No.10 and therefore, is not an absolute Exemption Notification rather a conditional Exemption Notification. For this reason alone, the provisions of Section 5A (1A) are not applicable to the assessee's case. Moreover, according to him, the very same notification, at Sl.No. 91 and 93 grants a concessional rate of 4% duty on final products which had been availed by the appellants. The case of the appellant is being not covered by Sl.No. 90 of the notification supra since it was only a conditional exemption notification because, according to him, when all the three conditions at No.10 are satisfied, only then, the exemption can be claimed by the manufacturer but with the caveat that the exemption is subject to the first clearance....

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.... (supra) involving the following issue extracted for the sake of convenience:- "9. The common issue that arises for consideration in all these appeals is whether the assessees are eligible to avail exemption as per the 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." This Bench relying on the decision of Balakrishna Paper Mills & Others (supra) had thus concluded that the demand raised by the Revenue could not be sustained. On a reading of the above order of this Bench we find that the issue is no more res integra and therefore, we follow the same ratio decidendi to hold that the demand raised by the Ld. Commis....