9911796707
TMI Blog2010 (1) TMI 1048X X X X Extracts X X X X X X X X Extracts X X X X ..... empted finished products - appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... nts were availing full duty exemption under Notification No. 30/04-C.E., dated 9-7-2004, which is available subject to condition of not availing any input duty credit; that the appellants in respect of clearances for export from June, 2005 onward started availing benefit of exemption under Notification No. 29/2004-C.E. which prescribes optional rate of duty of 4% and full duty exemption was availed in respect of clearances for home consumption; that as per Board's Circular No. 795/28/2004-CX., dated 28-7-2004 it is permissible for a manufacturer to avail benefit under both the exemption notifications i.e. 29/04-C.E. prescribing optional rate of duty at 4% on cotton yarn and No. 30/04-C.E. prescribing full duty exemption; that the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orrect. He also pointed out that in the case of the same appellant, for the period from April, 2005 to May, 2005 similar demand has been made but the same were dropped by the Additional Commissioner vide Order-in-Original No. 27/CE/ADC/LDH/2006 dated 25-9-2006. 3. Shri I. Baig, the learned D.R., defended the impugned order pleading that at the time of receipt of capital goods, in question, the goods manufactured by using those capital goods were being cleared by availing full duty exemption under Notification No. 30/04-C.E. and, therefore, in terms of Tribunal's judgment in the case of Surya Roshni, capital goods Cenvat credit has been rightly denied; that the Tribunal's judgment in the case of Surya Roshni (supra) has been affirmed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. (supra) relied upon by the Commissioner (Appeals), the finished products at the time of receipt of capital goods were fully and unconditionally exempt from duty while it is not so in this case as in this case while Notification No. 30/04-C.E. provides full duty exemption subject to the condition that no input duty credit has been taken, Notification No. 29/04-C.E. issued on the same date provides optional rate of duty of 4% adv. without any condition. Therefore, the ratio of Tribunal's judgment in the case of Surya Roshni Ltd. (supra) is not applicable to the facts of this case. In view of the above discussion, impugned order is not sustainable and the same is set aside. Appeal is allowed. (Dictated and pronounced in the Open Court)< ..... X X X X Extracts X X X X X X X X Extracts X X X X
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