ORDER
Jyoti Balasundaram, Member (J)
1. The appellants are engaged in the manufacture of photocopying machines, toners and developers. They filed a declaration under Rule 57G specifying the toner as final product and polypropylene, HDPE as inputs for the manufacture of toner. They took Modvat credit on the polypropylene and HDPE granules and they filed a classification list declaring plastic bottles and caps as excisable goods manufactured in the factory. The appellants paid duty at 15% ad valorem in terms of Notification No. 53/88-C.E., dated 1-3-1988 on the toner bottles and subsequently in terms of Notification No. 14/92, dated 1-3-1992. The appellants informed the Department that toner bottles are captively consumed as packing material for the toners manufactured by the appellants. Show cause notices 28-4-1993 and 24-3-1994 for the period June 1993 to July 1993 and August 1993 to February 1994 were issued to the appellants proposing to recover Modvat credit availed on HDPE and polypropylene on the following grounds:
(a) Toner bottles captively consumed are exempt from payment of duty in terms of Notification No. 217/86 and hence no Modvat is available on HDPE and polypropylene granules.
(b) The credit of duty on raw materials for packing materials via the intermediate stage of packing materials is also not admissible since the credit of duty paid on the HDPE and polypropylene is not available in respect of toner. The Assistant Collector passed the adjudication order dated 31-3-1994 holding that toner bottles and caps captively consumed being exempt from payment of duty in terms of Notification No. 217/86, the appellants were not entitled to Modvat credit and that they had wrongly utilised Modvat credit amounting to Rs. 4,86,217/-. The lower appellate authority vide order dated 27-9-1994 upheld the Assistant Collector’s order and hence this appeal.
2. I have heard Shri M.P. Dev Nath, learned Counsel and Shri V.R. Sethi, learned DR and considered the submissions.
3. The fact of use of HDPE and polypropylene granules in the manufacture of toner bottles has not been disputed by the Department and the only objection raised in the show cause notice is that the toner bottles which are captively consumed will be exempt from duty under Notification No. 217/86. However, this objection is not sustainable in view of the fact that the law is clear that when there are two different exemptions available to an assessee, it is open to the assessee to choose to avail one which is more beneficial to it. Therefore, the appellants have rightly availed of the benefit of Notification Nos. 53/88 and 14/92 instead of Notification Nos. 217/86. This is the view of the Tribunal as expressed in the case of Everest Converters v. CCE reported in 1995 (80) E.L.T. 91 and Gothi Plastic Industries v. CCE reported in 1996- (83) E.L.T. 123 and Polychem Ltd. v. CCE reported in 1997 (90) E.L.T. 156 (wherein both Notifications have been discussed qua Notification No. 53/88). The recent decision of the Tribunal holding the same view is in the case of Mechciv Engineers Ltd. – Final Order No. 31/97-NB, dated 18-2-1997. Following the ratio of the above orders, which apply on all fours to the facts of the present case, particularly the decision of Polychem Ltd., I hold that the appellants are entitled to the credit in question, set aside the impugned order and allow the appeal.