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2013 (10) TMI 662 - CESTAT NEW DELHIOption to avail Exemption Notification No.29/2004 or 30/2004 CE – yarn manufactured and cleared for export - Waiver of Pre-deposit - Whether the applicant have option to avail the Notification No. 29/2004-CE where the rate of duty is 4% and the appellant have not availed input duty credit - Exemption Notification No. 29/2004-CE is an unconditional exemption which prescribes a rate of duty of 4% advelorum - Held that:- There is no condition in the notification that for availing of the 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 - this does not mean that an assessee not availing input duty credit cannot 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 his goods at nil rate of duty under Notification No. 30/2004-CE and when two exemption Notifications are available to an assessee, he can always opt for the Notification which is most beneficial for him and in this regard the Department cannot force the assessee to avail a particular exemption Notification. Looked at from this point of view, the Department’s stand is incorrect. During the period of dispute the appellant was clearing the goods by availing full duty exemption as well as on payment of duty, the capital goods cannot be treated as having been used exclusively in the manufacture of exempted goods and Cenvat Credit in respect of the same cannot be demised - the Appellant have a strong prima facie case in their favour - the requirement of pre-deposit of Cenvat Credit demand, interest and penalty waived for hearing of the appeals and recovery stayed till the disposal of the appeals – stay granted.
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