TMI Blog2010 (1) TMI 1048X X X X Extracts X X X X X X X X Extracts X X X X ..... - 18-1-2010 - Shri Rakesh Kumar, J. Shri Mohinder Singh, Advocate, for the Appellant. Shri I. Baig, SDR, for the Respondent. ORDER The facts given rise to this appeal, in brief, are as under :- 1.1 The appellant are engaged in the manufacture of cotton yarn and yarn of man-made fibre falling under Chapters 52 55 of the Central Excise Tariff. They were availing Cenvat credit of duty on inputs and capital goods according to the provisions of Cenvat Credit Rules, 2004. During the period from January, 2005 to March, 2005, certain capital goods were received in the appellant s factory in respect of which Cenvat credit amounting to Rs. 75,798/- was availed. Subsequently, the Department issued a show cause notice dated 2-2-200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication No. 30/04-C.E., dated 9-7-2004, which is available subject to condition of not availing any input duty credit; that the appellants in respect of clearances for export from June, 2005 onward started availing benefit of exemption under Notification No. 29/2004-C.E. which prescribes optional rate of duty of 4% and full duty exemption was availed in respect of clearances for home consumption; that as per Board s Circular No. 795/28/2004-CX., dated 28-7-2004 it is permissible for a manufacturer to avail benefit under both the exemption notifications i.e. 29/04-C.E. prescribing optional rate of duty at 4% on cotton yarn and No. 30/04-C.E. prescribing full duty exemption; that the Commissioner (Appeals) has denied the Cenvat credit followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same appellant, for the period from April, 2005 to May, 2005 similar demand has been made but the same were dropped by the Additional Commissioner vide Order-in-Original No. 27/CE/ADC/LDH/2006 dated 25-9-2006. 3. Shri I. Baig, the learned D.R., defended the impugned order pleading that at the time of receipt of capital goods, in question, the goods manufactured by using those capital goods were being cleared by availing full duty exemption under Notification No. 30/04-C.E. and, therefore, in terms of Tribunal s judgment in the case of Surya Roshni, capital goods Cenvat credit has been rightly denied; that the Tribunal s judgment in the case of Surya Roshni (supra) has been affirmed by the Apex Court by dismissing Civil Appeal No. 8512/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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