TMI Blog2022 (3) TMI 452X X X X Extracts X X X X X X X X Extracts X X X X ..... was used exclusively for manufacture of exempted goods. It is the contention in the show cause notice as well as in the impugned order that when the capital goods in question was received, the appellant was engaged in the manufacture of exempted goods however it is not clear whether the said capital goods were used in the manufacture of exempted goods - even if the goods per se were exempted during the receipt and installation of the capital goods but if the said capital goods were not put to use for manufacture of any exempted goods it cannot be said that the said capital goods were used exclusively for manufacture of exempted goods in terms of Rule 6(4) of Cenvat Credit Rules, 2004. In the fact of the present case the capital goods even though receipt earlier but when it started manufacturing the goods were dutiable i.e. from 01.03.2011. In this position, it appears that the capital goods on which the cenvat was claimed by the appellant was never used exclusively for manufacture of exempted goods. However, since the adjudicating authority has decided the case only on the basis that at the time of receipt of capital goods the product was exempted, therefore, the fact regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pital goods is not admissible being received by them during the period when the final product manufactured were exempted from payment of duty. On adjudication, the demand was confirmed with equal amount of penalty imposed under Rule 15(2) of Cenvat Credit Rules, 2004 read with Section 11AC of Central Excise Act, 1944 and Penalty of ₹ 1 Lakh was also imposed on Shri Amit Radheshyam Gupta, Zonal Finance Head. Aggrieved by the impugned order dated 21.03.2013, present Appeals have been filed. 3. Shri Vikaram Nankani, Learned Senior Counsel and Shri Hardik Modh, Learned Counsel appeared for the appellant. Shri Vikram Nanakani submits that appellant had received the capital goods i.e. Parts, Components and sub sets of the new 600 BPM Pet Bottling Line during the period 13.10.2011 to 28.02.2011. The said Capital goods was purchased by the Appellant for utilization of the same in manufacturing of final product i.e maaza . Installation of the machinery and trial run production were completed during the period 14.03.2011 and commenced commercial production from 29.03.2011. Therefore the Appellant had rightly availed the Cenvat Credit in the month of March 2011 in terms of Rule 4(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of exempted goods. In the present case appellant received the capital goods during the period between October 2010 and February 2011 and availed cenvat credit in March 2011 and April 2011. Since it is undisputed fact that the final products manufactured by the Appellant became dutiable with effect from 01.03.2011 and the said capital goods were used in manufacture of final products during the same financial year, conditions provided to avail Cenvat Credit has been complied with. He also submits that amendment introduced by way of substitution in Rule 6(4) applies retrospectively. 4. On other hand Shri T.G. Rathod, Learned Additional Commissioner (AR) defended the impugned order by reiterating the findings of Commissioner and pleaded that Cenvat Credit of the duty paid on capital goods can be allowed only when on the date of receipts of such capital goods, the final product to be manufactured is dutiable. Revenue relies upon the following decisions: 2016(332) ELT 831(Tri, Bang) Andhra Polymers Pvt. Ltd Vs. CCE Hyderabad -II 2016(341) ELT 351 (Tri-Del) Ankit Roofings Pvt. Ltd. Vs CCE, Jaipur 2003(155) ELT 481(Tri-Del)-CCE, Indore Vs Surya Roshni Ltd. 2003(158) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d said goods. As per the facts of the present case, though the capital goods were received during the period 13.10.2010 to 28.02.2011 but as per submission of the appellant the trial production on said capital goods for manufacture of goods namely Maaza was undertaken on 14.03.2011 and commercial production of the said goods was commenced on 29.03.2011 with this fact it clear that since this machine was not used prior to 14.03.2011 for manufacture of any goods, it cannot be said that the said machine was used exclusively for manufacture of exempted goods. It is the contention in the show cause notice as well as in the impugned order that when the capital goods in question was received, the appellant was engaged in the manufacture of exempted goods however it is not clear whether the said capital goods were used in the manufacture of exempted goods. 5.1 As per our view even if the goods per se were exempted during the receipt and installation of the capital goods but if the said capital goods were not put to use for manufacture of any exempted goods it cannot be said that the said capital goods were used exclusively for manufacture of exempted goods in terms of Rule 6(4) of Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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