9911796707
TMI Blog2017 (6) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise Tariff Act, 1985. Appellant as on 09.01.2006 opted to avail exemption under Notification No. 30/2004 CE dated 09.07.2004 which allows exemption from duty subject to the condition that cenvat credit on inputs or capital goods was not availed. During the course of audit, it was observed that for the period from February 2006 to January 2008, the appellants had availed the balance of cenvat credit of Rs. 2,65,203/- (Rupees Two Lakhs Sixty Five Thousand Two Hundred and Three only) on the capital goods after opting out of cenvat credit as on 09.01.2006. Earlier 50% of the credit was availed during March 2005 and subsequent 50% availed on 20.02.2006 i.e. after opting out of the cenvat scheme on 09.01.2006. The balance credit was utilize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of duty on any excisable goods, whether cleared for home consumption or for exports. Aggrieved by the said order, the appellants have filed the present appeal. 2. Heard both the parties and perused the records. 3. The learned consultant for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without understanding the nature of transaction and the issue in question and also without examining the appropriate exemption Notification 30/2004 CE dated 09.07.2004. He further submitted that the learned Commissioner has misinterpreted the facts on record and has decided merely on the basis of assumption and presumption and the contention raised by the appellant has not been considered by the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serted as sub-rule (3) to Rule 11 of Cenvat Credit Rules 2004 w.e.f. 01.03.207. Since in the instant case, the issue pertains to the period prior to that date, the said provisions will not apply and the said demand is not sustainable. He further submitted that the show-cause notice alleges that the said credit was utilized towards payment of duty on the final products manufactured. These observations in the show-cause notice are factually incorrect because the observation of the Commissioner was that the same was used for payment of past liability. Therefore it is relevant to note that when the demand is made for the past liability, the eligibility of credit pertains to the earlier period should be allowed. For this submission, the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and not on capital goods which means that the cenvat credit on capital goods is permissible under the said notification. But this aspect which is very crucial for the decision in this case was not at all considered in the impugned order. However the said corrigendum was issued on the same day but the learned Commissioner did not take notice of the said corrigendum and decided the case merely by going through the Notification 30/2004. Further by going through the Notification 30/2004, I find that there is no provision for lapsing of credit. Even when goods in question were being exported, there is clear provision under Cenvat Credit Rules 2004 that Rule 6 is not applicable for exports. Further I find that the Department issued show-cause ..... X X X X Extracts X X X X X X X X Extracts X X X X
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