TMI Blog2021 (8) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... not brought on record by the Learned AR. Therefore, the version of Learned AR is totally mis-conceived and not according to the facts on record. The cenvat credit on capital goods during the impugned period cannot be denied to the appellant. Further, even if it is agreed that N/N. 29/2004-CE read with N/N. 58/2004-CE was considered which provided full, unconditional exemption notification up to 6.7.2009, capital goods credit would not have been available during that period. Once the duty became payable from 7.7.2009, the appellant was entitled to take credit on the capital goods used in the manufacture of the goods. No time limit has been prescribed for availing CENVAT credit on capital goods. As long as the capital goods in question were used in the manufacture of dutiable goods (post 7.7.2009), nothing stops the appellant from taking CENVAT credit even on the capital goods received earlier (up to 6.6.2009) but also used post 7.7.2009. Appeal allowed - decided in favor of appellant. - Excise Appeal No.60633 Of 2017 - A/60871/2021 - Dated:- 10-8-2021 - MR. ASHOK JINDAL, MEMBER (JUDICIAL) AND MR. P. VENKATA SUBBA RAO, MEMBER TECHNICAL) Shri Surjeet Bhadu, Advocate f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 58/2008-CE provided unconditional full exemption. (c) Notification No. 30/2004-CE dated 09.07.2004 granted full exemption from payment of central excise duty subject to the condition that no cenvat credit is taken on inputs consumed in the manufacture of the final products. The appellant availed the benefit of exemption notification no. 30/2004-CE for the goods cleared for domestic sale and notification no. 29/2004-CE for the goods cleared for export. For the period February 2009 to 6 July 2009, since both notifications provided for full exemption, no duty was payable on the yarn manufactured by them. 4. The case of the revenue is that as the appellant opted to avail under Notification No. 30/2004-CE dated 09.07.2004, therefore, they were not required to pay any duty for such clearances and for the goods cleared under Notification No. 29/2004 for the period 1 February 2009 to 6 July 2009, no duty was payable. Therefore, any amount paid by them is only a deposit. In view of the full unconditional exemption, the appellant was not entitled to take CENVAT Credit of duty paid on capital goods in respect of cotton yarn plant and machinery on capital goods for the period 1-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed goods, cenvat credit on capital goods cannot be denied. 7. He further submits that the appellant s own case, for subsequent period, this issue has been decided in favour of the appellant by the adjudicating authority vide the Order-in-original No. 23-32/CE/CHD-II/2015 dated 24.08.2015 which order has been accepted by the department. Therefore, the issue has attained finality. 8. He further submits that a similar issue came up before this Tribunal in the case of WINSOME YARNS LTD. Vs. COMMR. OF C. EX. SERVICE TAX, CHANDIGARH-II reported in 2015 (317) E.L.T. 479 (Tri. - Del.) wherein cenvat credit of capital goods has been allowed to the appellant. The same view has been taken by this Tribunal in the case of WINSOME YARNS LTD. Versus COMMR. OF C. EX. S.T., CHANDIGARH-II cited as 2015 (318) E.L.T. 261 (Tri. - Del.) and the said orders have been accepted by the respondent. 9. He further submits that the case of the Revenue is that during the period 07.12.2008 to 06.07.2009, the rate of duty under Notification No. 29/2004 was reduced to Nil by way of Notification No. 58/2008-CE dated 07.12.2008 and the rate of 4% duty was restored only on 06.07.2009 by Notification No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Notification No. 29/2004-CE as amended by 58/2008-CE provided for full exemption. The appellant voluntarily reversed the cenvat credit without any protest which was confirmed and appropriated. The said notification was being availed for goods manufactured and cleared for exports as well as domestic sale. The said notification was amended by Notification No. 58/2008-CE dated 07.12.2008 granting full exemption to cotton yarn from payment of central excise duty till 06.07.2008. It is his submission that the admitted fact on record is that the appellant were availing simultaneous benefit of exemption Notification No. 29/2004-CE as well as Notification No. 30/2004-CE dated 09.07.2004, therefore, the issue for adjudication is admissibility of cenvat credit on capital goods during the period when the appellant manufactured and cleared goods under Notification No. 29/2004-CE dated 09.07.2004 on payment of concessional rate of duty under Notification No. 30/2004-CE dated 09.07.2004 at nil rate of duty and never maintained separate books of account for goods availing benefit of exemption under notification. The issue in hand is that in terms of Notification 30/2004-CE dated 09.07.2004, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which prescribed concessional rate of duty at the rate of 4% for clearance of the goods manufactured by the appellant, therefore, it cannot be said that during the period 07.12.2008 till 07.07.2009, the goods manufactured by the appellant were totally exempt from payment of duty. The said notification was also not brought on record by the Learned AR. Therefore, the version of Learned AR is totally mis-conceived and not according to the facts on record. 16. We also take a note of the fact that it is a fact on record that during the impugned period, the appellant has cleared goods on payment of duty and to that effect invoices have been placed by the appellant on record. One of the such invoice is also extracted herein below for better appreciation of the facts:- 17. We further take a note of the fact that a similar issue has been dealt by this Tribunal in the case of M/s Winsome Yarns (supra)wherein this Tribunal observed as under:- 6. There is no dispute that during period of dispute, the clearances for domestic consumption had been made by the appellant at nil rate of duty by availing the Notification No. 30/2004-C.E. and clearances for export had been made on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation. Looked at from this point of view, the Department s stand is incorrect. 6.1 Since during the period of dispute the appellant was clearing 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 and Cenvat credit in respect of the same cannot be denied. 7. In these circumstances, the impugned order deserves, no merits, hence the same are set aside. Consequently, the appeals are allowed. 18. Further, we take a note of the fact that on similar facts for the subsequent period, the cenvat credit on capital goods was allowed by the adjudicating authority to the appellant in their own case. Therefore, the revenue cannot take divergent view on the same issue which has already been settled by this Tribunal. As Rule 6 (4) of CCR, 2004 deals with the situation that if the capital goods have been used for manufacture of exclusively exempted goods, cenvat credit is not available. But, as per the facts of the case and arguments advanced by the Learned Counsel for the appellant, the appellant is manufacturing dutiable as well as exempted goods and clea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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