TMI Blog2023 (12) TMI 1064X X X X Extracts X X X X X X X X Extracts X X X X ..... CESTAT MUMBAI] has held it is not a situation where the duty credit on inputs were availed in respect of exempted goods and dutiable goods simultaneously. Hence the provisions of Rule 6(3) of the Cenvat Credit Rules, 2004 is not applicable in the facts of the case. The Tribunal in the case of Winsome Yarns Ltd. [ 2015 (9) TMI 459 - CESTAT NEW DELHI ] has held When an assessee does not avail of input duty credit, he has option to pay 4% duty under Notification No. 29/2004-C.E. and also the option to clear his goods at nil rate of duty under Notification No. 30/2004-C.E. and when two exemption Notifications are available to an assessee, he can always opt for the Notification which is most beneficial for him and in this regard the Departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants, submits that the issue is no longer res integra and in a series of judgments, the Tribunal has decided the issue in favour of the appellants. He relies on the following: Shrijee Lifestyle Pvt. Ltd. 2014 (312) ELT 113 (Tri. Mumbai). Arvind Ltd. 2014 (300) ELT 481 (Guj.) and 2016 (334) ELT 146 (Tri. Ahmd.). Winsome Yarns Ltd. 2015 (317) ELT 479 (Tri. Del.). Oswal Woollen Mills Ltd. 2012 (284) ELT 240 (Tri. Del.). Circular No. 795/28/2004-CX dated 28.07.2004. 3. Shri Ravinder Jangu, learned Authorized Representative for the Department, reiterates the findings of the impugned order and relies on the following cases: Arthanari Loom Centre (Textiles) Pvt. Ltd. 2014 (313) ELT 943 (G.O.I.) Ankit R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 6(6)(v) of the Cenvat Credit Rules, 2004 reads as follows: (6) The provisions of sub-rules (1), (2), (3) and (4) shall not be applicable in case the excisable goods removed without payment of duty are either - (i) .. (ii) .. (iii) .. (iv) .. (v) cleared for export under bond in terms of provisions of the Central Excise Rules, 2002; or (vi) .. The demand in the instant case has been made under Rule 6(3) which provides that: manufacturer of goods or provider of output service opting not to maintain separate accounts shall follow either of the following options, as applicable to him, namely: - (i) the manufacturer of goods shall pay an amount equal to ten per cent of va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit Rules, 2004 is not applicable in the facts of the case. 6. We further find that the Tribunal in the case of Winsome Yarns Ltd. (supra) has held 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 payment of 4% duty under Notification No. 29/2004-C.E. There is also no dispute that during the period of dispute no input duty credit had been availed and only capital goods Cenvat credit had been availed in respect of which there is no prohibition in Notification No. 30/2004-C.E. Thus the appellant even in respect of clearances made under Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not avail the exemption under Notification No. 29/2004-C.E., as this is an unconditional Notification. When an assessee does not avail of input duty credit, he has option to pay 4% duty under Notification No. 29/2004-C.E. and also the option to clear his goods at nil rate of duty under Notification No. 30/2004-C.E. and when two exemption Notifications are available to an assessee, he can always opt for the Notification which is most beneficial for him and in this regard the Department cannot force the assessee to avail a particular exemption Notification. 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 we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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