TMI Blog2016 (12) TMI 912X X X X Extracts X X X X X X X X Extracts X X X X ..... t of capital goods. Even, on the basis of Larger Bench of this Tribunal, in the case of Spenta International Ltd.[2007 (8) TMI 25 - CESTAT, MUMBAI], the products of the appellant, being Asbestos Cement Sheets was taxable under Chapter Heading No.68114010 of Central Excise Tariff Act, 1985. Accordingly, the credit eligibility is determined in favor of respondent with reference to the dutiability of final product on the date of receipt of capital goods. I also placed reliance on the decision of Superior Judicial Forum of this Tribunal, West Zonal Bench, Ahmedabad in the case of Commissioner of Central Excise Versus Gujarat Propack [2008 (9) TMI 170 - GUJARAT HIGH COURT], wherein the capital goods received for manufacture of Granules out o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registered for manufacture of Asbestos Cement Sheets falling under Chapter Heading No.68114010 of Central Excise Tariff Act, 1985 taxable @ of 8% Adv. at the relevant time. 3. The admitted facts of the case are that the Asbestos Cement Sheets falling under Chapter Heading No.68114010 of Central Excise Tariff Act, 1985 taxable @ of 8% Adv. But the goods, namely the Asbestos Cement Sheets/products attracted Nil rate of duty under Notification No. 06/2002-CE dated 01/03/2002, on fulfilling the condition that the said goods contained not less than 25% Fly Ash or Phospho-gypsum or both. This notification was rescinded vide Notification No.21/2006-CE dated 01/03/2006 and another Notification No.05/2006-CE dated 01/03/2006 was issued which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e year 2000-01. However they could not take any credit on the capital goods as they were working under exemption. However from 01/04/2001, they started paying duty and opted for the Cenvat Credit Scheme. Therefore they are eligible to take Cenvat credit of duty on the capital goods during the year 2001-02. Under Rule 57AC(2)(a) at the relevant time, the provision was that the Cenvat credit in respect of capital goods received in a factory at any point of time in a given financial year shall be taken only for an amount not exceeding 50% of the duty paid on such capital goods in the same financial year. The Rule 57AC(2)(b) of the Central Excise Rules provides that balance of Cenvat credit may be taken in any financial year subsequent to the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d exclusively in manufacture of exempted goods. Accordingly, held, the credit eligibility was to be determined with reference to the dutiability of final product on the date of receipt of capital goods. 7. Having considered the rival contentions, I find that in the facts of the present case, it is an admitted fact that the Asbestos Cement Sheets, for which the respondent assessee registered with Revenue, falling under Chapter Heading No.68114010 of Central Excise Tariff Act, 1985 is dutiable. The appellant had only availed a conditional exemption for a short period which under the facts had been applied for and availed subsequent to the receipt of capital goods. Even, on the basis of Larger Bench of this Tribunal, in the case of Spenta I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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