2008 (8) TMI 309

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....per m.t. for cement manufactured in a cement plant with vertical shaft kiln, with installed capacity not exceeding 300 m.t. per day or 99,000 m.t. per annum. They filed a declaration dt.1-4-97 under Rule 173B of Central Excise Rules, 1944 for availing notification 4/97-C.E. w.e.f.1-4-97. On 27-6-97, notification 38/97-C.E. was issued which prescribed concessional rates of duty of '60% of normal duty' and '80% of normal duty' for different turnover slabs, with aggregate value, not exceeding rupees one crore, in a financial year and 'normal duty' as defined in the notification, means the tariff rate read with relevant exemption notification (other than the exemption notification in which exemption is based on quantity or value of clearances).....

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....dl. Commissioner, vide two orders-in-original, each dt. 28-2-2000, confirmed two more duty demands on this issue, of Rs. 60,777/- and Rs. 5,35,701/- pertaining to periods-from April '98 - May '98 and June '98 - March'99 respectively. The Appellants filed appeals against these orders. The Commissioner of Central Excise (Appeals), vide a common order-in-appeal No.186-188-C.E./APPL / LKO/04 dt. 4-8-04 upheld the duty demands only for normal limitation period and set aside the penalties on the Appellants under Section 11AC. However, the Appellants' plea for permitting the availment of the more beneficial notification No. 4/97-C.E. was rejected. It is against this order that these three appeals have been filed. 2. Heard both sides. 2.1 Shri Su....

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....n assessee, it is open to the assessee to choose which one is more beneficial to him and avail that notification as in this regard, reliance is placed on Tribunal's judgment in case of Modi Zerox Ltd. v. CCE, Meerut reported in 1997 (94) E.L.T.139. 2.2 Shri M.M. Singh, the learned Departmental Representative opposing the Appellants' contention pleaded that since the Appellants were earlier availing of notification No. 4/97-C.E. which had a rider that this exemption will not be available in respect of the goods in respect of which duty exemption under notification No. 38/97-C.E. has been availed and since while availing of exemption notification No. 4/97-C.E., the Appellants admittedly also started availing duty exemption under notification....

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.... duty, in respect of first clearances upto value of Rs. one crore in a financial year and the 'normal duty' as per the definition of this expression given in the notification would, in this case, be the tariff rate i.e. Rs. 350/- per m.t. The Appellants were, however, paying duty @ 60% or 80% of Rs. 200/- instead of 60% or 80% of Rs. 350/- per m.t. When this irregularity was detected by the Department, the Department has denied the benefit of notification 4/97-C.E. and has determined their duty liability on the basis of notification No. 38/97-C.E. while the Appellants' plea is that since both the notifications are applicable to them and since notification 4/97-C.E. is more beneficial to them, their duty liability should be determined under ....