Per K.C. Mamgain : This appeal is filed by M/s. Kapardi Straw Boards against Order-in-Appeal No. 66/01 (G) CE dtd. 19.09.2001 passed by the Commissioner of Central Excise (Appeals), Hyderabad.

2. Shri Sarabeswara Rao, Consultant appearing for the appellant, 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-CE dtd. 1.3.97 which was replaced by Notfn. No. 16/97 dtd. 1.4.97. 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 Notfn. No. 4/97-CE specifically excludes the exemption thereunder to parties who were availing exemption under Notfn. No. 16/97. They made a representation vide their letter dtd. 26.11.97 to the Assistant Commissioner. However, the Assistant Commissioner vide his letter dtd. 19.12.97 informed them that Notfn. No. 4/97 is conditional notification which restricts availment of benefit under Notfn. No. 16/97 under conditions 13 or 14. The unit has to pay effective tariff rate of duty for clearances made after crossing 100 lakhs value of clearances in accordance with Notfn. No. 16/97 dtd. 1.4.97 only. The appellants filed appeal against this letter of the Assistant Commissioner, before the Commissioner (Appeals). The Commissioner (Appeals) under the impugned Order held that the appellants are not eligible for benefit of Notfn. No. 4/97, once they have opted for availment of Notfn. No. 16/97-CE dtd. 1.4.97. He pleaded that they can avail of benefit of both the notification as the appellant claimed the option to avail exemption in the beginning by filing declaration under Rule 173B on 1.3.97 itself. He stated that according to the lower authorities, concessional rate of duty till the date of crossing of Rs. 100 lakhs value of clearances under Notfn. No. 16/97 is the one time option and that regularization of duty paid on the clearances made earlier cannot be regulate under Notfn. No. 4/97. He pleaded that this is not the correct position. He relied on the decision of Tribunal in the case of :-

(1) M/s. Sonic Band International Vs. CCE, Vadodara, 1999 (109) ELT 524 wherein it was held that exemption claimable at any state not deniable 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 Vs. CCE, Belgaum, 2001 (46) RLT 181 (CEGAT-Ban.)=2001 (131) ELT 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. Vs. CCE, 1999 (35) RLT 38 (CEGAT)=2000 (117) ELT 157 wherein it was held that option for a particular notification when there are more than one notifications on the same issue, lies with the assessee.

3. Shri B.R. Jagadish, appearing for Revenue pleaded that there is a specific condition in Notfn. No. 4/97 that the same is not applicable to a manufacturer of the said goods who avails of exemption under Notfn. No. 16/97 dtd. 1.4.97. He also stated that Notfn. No. 16/97-CE dtd. 1.4.97 in Para 2 (i) clearly specifies the condition that a manufacturer has the option to not avail the exemption under this Notification and to pay the appropriate duty of excise leviable under the Schedule to Central Excise Tariff Act, 1985 (5 of 1986) read with any notification issued under sub-section (1) of Sec. 5A of the said Central Excise Act, but for the exemption contained in paragraph 1, such option shall be exercised before effecting the first clearance in a financial year and, if exercised, shall be effective from the date of f