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2019 (5) TMI 506

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..... showing the availment of cenvat credit but were not paying excise duty for the reason that the goods were cleared under exemption notification No. 30/04-CE, therefore, relevant fact that the appellant in one hand availing the exemption notification 30/04-CE and on other hand availing the cenvat credit on capital goods were very much declared in the ER-1 return, therefore, there is no intention coming out from the ER-1 return that the appellant intend to evade any payment of duty, therefore, the entire demand raised for extended period will not sustain on the ground of limitation as the SCN for the period April 2004 to December 2004 was issued much after one year i.e. 01.01.2009. Since the demand is hit by limitation, the merits of the ca .....

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..... 07.2004 therefore, the department s case is that the capital goods were used exclusively for manufacture of exempted goods, therefore the credit is not admissible. 2. Sh. K.I Vyas Ld. Counsel along with Shri Raj Vyas (Advocate) appearing on behalf of the appellant submits that they were manufacturing textiles articles and availing exemption Notification 30/2004-CE as well as Notification no. 29/2004-CE simultaneously, therefore, the capital goods on which the credit was taken were used simultaneously for manufacture of dutiable as well as exempted goods, therefore it is not correct that the capital goods were used exclusively for non-dutiable final product. Hence the credit cannot be denied. He submits that in the identical facts, the follo .....

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..... d by the appellant was cleared under Notification 30/04-CE the capital goods were used exclusively for manufacture of exempted final product hence, invoking Rule 6(4) of Cenvat Credit Rules, 2004, the cenvat credit is not admissible to the appellant. In support of his submission he placed reliance on the following judgments. Commissioner of Central Excise Coimbatore vs Precot Mills Ltd. 2007 (212) ELT 483 (Tri. Chen.). Commissioner of Central Excise Indore vs Surya Roshni Ltd. 2003 (155) ELT 481 which was upheld by the Supreme Court by dismissing the assessee s appeal reported at Surya Roshni Ltd. vs Commissioner 2003 (158) ELT A273 (SC). Spenta International Ltd. vs CCE Thane 2007 (216) ELT 143 (Tri. LB) 4. We have heard both the sides and .....

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