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2013 (7) TMI 372 - CESTAT NEW DELHIAvailment of the Notification No. 30/2004-CE or Notification No. 29/2004-CE – simultaneously - manufacture and clearance of yarn (textile) - when the assessee have not availed input duty credit, whether they have option to avail the Notification No. 29/2004-CE where the rate of duty is 4%. Held that:- Exemption Notification No. 29/2004-CE - an unconditional exemption which prescribes a rate of duty of 4% advelorum. There is no condition in this notification that for availing of this exemption prescribing concessional rate of duty of 4% adv., input duty Cenvat Credit must be availed. The condition of non-availment of input duty Cenvat Credit is for nil duty under Notification No. 30/2004-CE. But this does not mean that an assessee not availing input duty credit can not avail the exemption under Notification No. 29/2004-CE, as this is an unconditional Notification - When an assessee does not avail of input duty credit, he has option to pay 4% duty under Notification No. 29/2004-CE and also the option to clear goods at nil rate of duty under Notification No. 30/2004-CE - When two exemption Notifications are available to an assessee, he can opt for the Notification most beneficial for him - Department can not force the assessee to avail a particular exemption Notification. - Decided in favor of Assessee. Stay on Pre-deposit . Held that:- Assessee have a strong prima facie case in their favour. Hence the requirement of pre-deposit of Cenvat Credit demand, interest thereon and penalty is waived – Stay application allowed. - Decided in favor of Assessee.
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