TMI Blog2019 (3) TMI 1221X X X X Extracts X X X X X X X X Extracts X X X X ..... CENTRAL EXCIS [2014 (2) TMI 1099 - ALLAHABAD HIGH COURT] had directed the Lower Authority to examine such aspect and has observed that if the assessee had the intention to manufacture both the types of goods i.e. exempted goods as also dutiable, the benefit of Cenvat Credit has to be allowed. The Adjudicating Authority has observed that inasmuch as the machine is designed to handle carbonated/aerated soft drinks by software changes and minor adjustment, the objective can be achieved without any modification and as such the assessee has to be held as admissible to cenvat credit. Revenue has not advanced any justifiable ground to interfere in the said order of the Commissioner - appeal dismissed - decided against Revenue. - APPEAL No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Authority on 15.11.2006 confirming the demand along with interest and imposing penalties. The said order of the Original Authority was upheld by the Tribunal vide its Order reported as M/s Brindavan Beverages Pvt. Ltd. V/s Commissioner of Central Excise, Meerut reported as 2008 (232) E.L.T. 475 (Tri.-Delhi). While rejecting the assessee s appeal Tribunal observed that the conditions for eligibility of the credit are to be fulfilled at the time of receipt of capital goods in the factory and any subsequent developments of use in dutiable goods eligibility. As such the assessee s plea that subsequently the said machine was also used in the manufacture of the dutiable product was rejected, inasmuch as the machine could be used for manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 Sub-rule (4) of Cenvat Credit Rules, 2004 only when machine is exclusively used for manufacture of exempted goods. The Hon ble High Court took note of the objection raised by the Counsel appearing for the Revenue to the effect that said certificate dated 25.09.2009 was not before the Tribunal and if reliance is being placed on the said certificate the matter should be remanded, the appeal filed before the Hon ble Allahabad High Court was remanded by observing as under:- In the present case, from the facts which emerges from the record, it is clear that the machine which was installed in the factory was used both for manufacture of exempted goods as well as dutiable goods. Dutiable goods were manufactured since October, 2006 which fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Tribunal for consideration afresh. 10. Thus, the appeal is allowed by setting aside the judgment of the Tribunal dated 1-5-2008 and the matter is remitted back to the Tribunal to decide the appeal afresh in accordance with law taking into consideration the certificate dated 25-9-2009 which has been placed before us. 5. When the matter came before the Tribunal, the Tribunal vide its Final Order No.53713/2014 dated 23.09.2014 further remanded the matter to the Original Adjudicating Authority by observing as under:- 8. In the present case the capital goods had been received during period from September 2004 to August 2005 when the Cenvat credit had been taken and according to the appellant at that time, they had in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no such evidence, it would have to be presumed that at the time of receipt, they had plans to use the capital goods, in question, only for manufacture of the fruit pulp based soft drinks (exempted final product) and it is only subsequently they decided to switch over to manufacture of dutiable final product (aerated waters) and in that event, in accordance with the Tribunal s judgment in case of Surya Roshni Ltd. (supra) and Spenta International Ltd. (supra), they would not be eligible for Cenvat credit. Accordingly, the impugned order is set aside and the matter is remanded to the Commissioner for de novo decision, keeping in view our above observations. 6. The impugned order in the present appeal of the Revenue is the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cant that the machine are required for manufacture of Sweetened Aerated Water and Fruit Juice/Pulp based Ready to Serve Beverages. Accordingly, he has held that the assessee always had an intention to use the capital goods for manufacture of fruit pulp based soft-drinks as also for manufacture of aerated water. The Hon ble Allahabad High Court in their order had directed the Lower Authority to examine such aspect and has observed that if the assessee had the intention to manufacture both the types of goods i.e. exempted goods as also dutiable, the benefit of Cenvat Credit has to be allowed . 8. We, further note that in terms of Hon ble Allahabad High Court order dated 24.02.2014, vide which directions were given to examine the certif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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