TMI Blog2011 (1) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... no dispute about the fact that notification No. 29/04-C.E. and 30/04-C.E. were being available during the same period simultaneously. In view of this position, it cannot be said that the capital goods, in question, had been used exclusively for the manufacture of fully exempted finished products.- Decided in favour of assessee. - 188 of 2010 - - - Dated:- 5-1-2011 - Adarsh Kumar Goel and Ajay Kumar Mittal, JJ. REPRESENTED BY : Shri Kamal Sehgal, Advocate, for the Appellant. [Order per : Adarsh Kumar Goel, J.]. This appeal has been preferred by the assessee under Section 35G of the Central Excise Act, 1944 against order dated 18-1-2010 [2010 (261) E.L.T. 807 (Tribunal)] passed by the Customs, Excise Service Tax Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s upheld by the Appellate Authority. On further appeal by the assessee, the Tribunal set aside the same, holding that it was not a case of availing of cenvat credit in respect of capital goods used in manufacture of exempted goods as by virtue of Notification No. 29/2004-C.E., dated 9-7-2004, 4% duty was payable on the manufactured goods. 3. We have heard learned counsel for the appellant. 4. Learned counsel for the appellant submits that even though Notification dated 9-7-2004 was in force, the same provided for optional duty and the assessee never invoked the said notification. In such a situation, the view of the Tribunal is against the view taken by it in CCE, Indore v. Surya Roshni Ltd. - 2003 (155) E.L.T. 481 (T) which was upheld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cenvat credit is inadmissible only in respect of those capital goods which are exclusively used in the manufacture of exempted goods. But is is not so in this case. In the case of Surya Roshni Ltd. (supra) relied upon by the Commissioner (Appeals), the finished products at the time of receipt of capital goods were fully and unconditionally exempt from duty while it is not so in this case as in this case while Notification No. 30/4-C.E. provides full duty exemption subject to the condition that no input duty credit has been taken, Notification No. 29/04-C.E. issued on the same date provides optional rate of duty of 4% adv. without any condition. Therefore, the ratio of Tribunal s judgment in the case of Surya Roshni Ltd. (supra) is not appl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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