TMI Blog2010 (3) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... the question of taking Cenvat credit of the balance amount does not arise. Held that- manufacture manufacturing excisable goods but exempt from registration formalities under Rule 9(1) for the reason that he is availing SSI exemption and the value of his clearances during the financial are within the full exemption limit, does not cease to be a manufacturer of excisable goods and therefore, capital goods Cenvat credit in terms of the provisions of Rule 3(1) read with Rule 4 of CCR, 2002 could not be denied to him for this reason. In view of the above discussion, the impugned order is not correct. The same is set aside. The appeal is allowed with consequential relief. - E/847/2008-SM - 332/2010-SM(BR)(PB), - Dated:- 16-3-2010 - Shri Rake ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of Rule 3(1) of Cenvat Credit Rules, 2004, the Cenvat credit was not available. 1.1 The show cause notice was adjudicated by the Asstt. Commissioner vide order-in-original dt. 19-5-07 by which the Cenvat credit demand was confirmed alongwith interest and penalty of equal amount was imposed under Rule 15 of CCR, 2004. The Asstt. Commissioner denied the capital goods Cenvat credit on the grounds that - (a) the capital goods were received in the factory during July'03 - June'04 period when Cenvat Credit Rules, 2002 (CCR, 2002) were in force but since the Appellant were not registered with Central Excise at that time, they were not eligible for Cenvat credit; and (b) when the appellant were not eligible for 1st instalment of capital ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear at that time, as they were availing full duty exemption under SSI exemption notification, during 2005-06, in terms of Board's Circular No. 345/2/2000-TRU, dt. 29-8-2000 they could take full Cenvat credit that just because during 2004-2005, the Appellant, availing full duty exemption under Notification No. 8/2003-C.E., were exempt from taking central excise registration and for this reason, they had not taken Central excise registration, the capital goods Cenvat credit in respect of capital goods received during this period cannot be denied; and that in view of this, the impugned order denying the capital goods Cenvat credit is not correct. 2.2 Shri S.N. Srivastava, the learned DR defended the impugned order reiterating the Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uly'03 - June'04 period. 4. Cenvat credit has been denied only on the ground that for availing Cenvat credit under Cenvat Credit Rules, a manufacturer is required to fulfil the statutory obligation of registration under the Central excise law and in this case since the Appellant were not registered during the period prior to 10-9-04 and took registration only on 30-6-05, they could not have earned any Cenvat credit under CCR, 2002 in respect of the capital goods received during July'03 - June'04 period and, hence, there is no question of permitting any credit to them in terms of Rule 11(1) of CCR, 04. 5. Since the period when the capital goods, in question, had been received, CCR, 2002 were in force and since in terms of Rule 11(1) of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CR, 02 and since no Cenvat credit was taken at the time of receipt of capital goods during 2003-04 and 2004-05, in terms of Board's Circular No. 345/2/2000-TRU, dt. 29-8-2000 full Cenvat credit could be taken in 2005-06. The provisions of Rule 6(4) prohibiting capital goods Cenvat credit in respect of capital goods being exclusively used in the manufacture of exempted goods are not applicable to this case as this sub-rule is not applicable when the capital goods are used for manufacture of final products, exempt from whole of duty under any exemption based on the value or quantity of clearances made in a financial year and in this case, the capital goods were being used for manufacture of goods wholly exempt from duty under an exemption not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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