TMI Blog2016 (8) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... Non 30/2004-C.E. and accordingly the appellant would not be eligible for capital goods Cenvat credit. Held that:– when two notifications available to assesse he can opt for most beneficial one – appellant cleared 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 - cenvat credit not denied – impugned order set aside – appeal allowed - E/55771/2013 - Final Order No. 60784/2016 - Dated:- 28-6-2016 - Mr. Ashok Jindal, Member (Judicial) Present for the Appellant: Shri Naveen Bindal, Advocate Present for the Respondent: Shri Satyapal, AR ORDER The facts giving rise to the appeal are, in brief, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment of 4% duty, the appellant were eligible for full duty exemption, as they satisfied the condition for Notification No. 30/2004-C.E. but they still chose to pay duty under Notification No. 29/2004-C.E., the amount paid towards duty cannot be treated as duty but only a deposit and the goods have to be treated as the exempted goods cleared under Notification No. 30/2004-C.E. and since the capital goods, in question have been used exclusively for manufacture of exempted goods, in view of Rule 6(4) of Cenvat Credit Rules, 2004, no Cenvat credit would be admissibly in respect of these capital goods. On this basis, the Department issued the show cause notice dated 15.3.2011 for recovery of allegedly wrongly availed capital goods amounting to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004C.E., that since the capital goods were not exclusively used for manufacture of exempted goods, the provision of Rule 6(4) of Cenvat Credit Rules, 2004 are not applicable and capital goods Cenvat credit cannot be denied, that the appellant have a strong case on merit, therefore it is prayed that the impugned orders be set aside. 4. Shri Satya Pal, learned departmental representative, opposed the contentions of the learned counsel and emphasized that while there is no dispute that a part of the clearances of yarn had been made under Notification No, 30/2004-C.E. at nil rate of duty without availing input duty credit and clearances for export had been made under Notification No. 29/2004-C.E. at 4% adv. duty, that in respect of clearanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of these clearances, they could have availed the input duty Cenvat credit. The point of dispute is as to when the appellant have not availed input duty credit, whether they have option to avail the Notification No. 29/2004-C.E. where the rate of duty is 4%. The Department's contention is that once the appellant have not availed any input duty credit and they have become eligible for Notification No. 30/2004-C.E., they have no option but to avail of the exemption Notification 30/2004-C.E. only and they cannot opt from Notification No. 29/2004-C.E. and pay 4% the duty and in such a situation if any duty payment has been made, it would have to be treated as deposit and the clearances would have to be treated as clearances of fully exempted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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