Option to taxable person if two exemption notifications available :
When there are two provisions under which an assessee (termed as taxable person in GST) could claim some benefit, it is for the assessee (termed as taxable person in GST) to choose one. -CIT v. Mahendra Mills 2000 AIR SCW 1016 = AIR 2000 SC 1960 =243 ITR 56 = 109 Taxman 225 (SC).
If assessee (termed as taxable person in GST) has option of either SSI exemption or availment of Cenvat credit (by paying excise duty on final product), he can choose either – CCE v. Grand Card Industries (2014) 45 GST 356 = 44476 = 305 ELT 19 (Del HC DB).
When two exemption notifications are available, assessee (termed as taxable person in GST) can choose any one. Department cannot pin down to avail exemption under a particular notification only – CCE v. Favourite Industries (2012) 7 SCC 153= 278 ELT 145 (SC) – affirming Favourite Industries v. CCE (2003) 156 ELT 802 (CEGAT).
Where there are two exemption notifications that cover the goods in question, assessee (termed as taxable person in GST) is entitled to the benefit of that exemption notification which gives him greater relief, regardless of the fact that notification is general in its terms and the other notification is more specific to the goods. – HCL Ltd. v. CCE2001(130) ELT 405 = 76 ECC 11 (SC 3 member bench order) – quoted in ABB Ltd. v. CCE (2009) 21 STT 77 = 15 STR 23 (CESTAT 3 member bench) * CCE v. Modi Xerox (2012) 275 ELT 406 (All HC DB) * Ajay Industrial Corporation v. CC (2015) 323 ELT 385 (CESTAT).
If applicant is entitled to claim benefit under two different notifications, he can claim more (i.e. better) benefit and it is the duty of authorities to grant such benefit to applicant – Share Medical Care v. UOI (2007) 4 SCC 573 =209 ELT 321 (SC) – quoted in Coca Cola India v. CCE (2009) 22 STT 130 (Bom HC DB) * ABB Ltd. v. CCE (2009) 21 STT 77 = 15 STR 23 (CESTAT 3 member bench) * Semco Electrical v. CCE (2010) 24 STT 508 (CESTAT SMB) * Winsome Yarns v. CCE (2015) 51 GST 649 = 5914 = 318 ELT 261 (CESTAT SMB) * Arvind Ltd. v. CCE (2016) 334 ELT 146 (CESTAT).
Principle that a specific provision will override a general one does not apply to exemption notification ABB Ltd. v. CCE (2009) 21 STT 77 = 15 STR 23 (CESTAT 3 member bench).
If two exemption notifications are available in respect of same product, the assessee (termed as taxable person in GST) may choose one which is more suitable to him. Department cannot insist that assessee (termed as taxable person in GST) must avail a particular notification only – CCE v. Pashwara Papers (P.) Ltd. – 1994 (73) ELT 297 (CEGAT) – following earlier decision in CCE v. Balraj Paper and Straw Board Mills (P.) Ltd. – 1990 (47) ELT 139 (CEGAT). Similar view in CCE v. Featherlite Corporation – 1991 (55) ELT 409 (CEGAT) * Ralli Machines v. CCE 1992(58) ELT 232 (CEGAT)* Indian Oil Corporation Ltd. v. CCE – 1991 (53) ELT 347 (CEGAT – 3 member bench) * Prominent Plastic Industries v. CCE 1997(93) ELT 299 (CEGAT) * Modi Xerox Ltd. v. CCE 1997(94) ELT 139 (CEGAT) * CCE v. Classic Rugs P. Ltd. 1998(103) ELT 322 (CEGAT) * CCE v. Cosmos Engineers 1998(108) ELT 213 (CEGAT) * Jai AmbePlastex Industries v. CCE 1999(113) ELT 297 (CEGAT) * CCE v. Galaxy IndlCorpn 1999(106) ELT 209 (CEGAT) * CCE v. Asian Paints 1999(114) ELT 972 (CEGAT) * Mamta Cement Co. v. CCE 2000(117) ELT 157 (CEGAT) * Indian Rayon v. CCE 2001(128) ELT 494 (CEGAT) * Waterbase Ltd. v. CC 2001(130) ELT 386 (CEGAT) * Gajraj Corporation v. CCE 2001(132) ELT 302 (CEGAT) *CCE v. Power Volts 2001(133) ELT 612 (CEGAT) * CCE v. Binnay Ltd. (2001) 137 ELT 1367(CEGAT) * Vittal Mallya v. CC 2002(140) ELT 404 (CEGAT) * Powerica Ltd. V. CC 2002(142) ELT699 (CEGAT) * Jayant Agro Organics v. CCE 2003 (157) ELT 684 (CESTAT) * Cipla Ltd. v. CC(2007) 218 ELT 547 (CESTAT) * CC v. Christian Medical College Hospital (2007) 208 ELT 531(CESTAT) * Hi-Tech Auto Craft v. CCE (2008) 231 ELT 286 (CESTAT) * Parashuram Cement v.CCE (2009) 238 ELT 196 (CESTAT) * Arvind Ltd. v. CCE (2014) 46 GST 566 = 4791(CESTAT) * Hindalco Industries v. CCE (2015) 317 ELT77 (CESTAT).
Even if one exemption notification is general and other notification is specific, assessee (termed as taxable person in GST) can opt either, which is beneficial to him. – CCE v. Maruthi Foam 1996(85) ELT 157(CEGAT) – followed in CCE v. Bharat Seats 1999(108) ELT 847 (CEGAT).
When more than two benefits are available, assessee (termed as taxable person in GST) can avail of either. – ABS Industries Ltd. v. CCE 1999 (112) ELT 854 (CEGAT).
In Raman Boards Ltd. v. CCE – 1988 (36) ELT 615 (CEGAT), the assessee (termed as taxable person in GST) was following one exemption notification. Later he found that other notification was more beneficial. He was allowed to switch to another notification, subject to condition that benefit obtained under earlier notification is paid back.
In Everest Convertors v. CCE (1995) 80 ELT 91 (CEGAT) = 60 ECR 670, it was observed ‘It does not require any authority to say that if a person has a choice of two benefits available to him, it is his option which benefit he would like to avail of’.