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TMI Blog2011 (3) TMI 758X X X X Extracts X X X X X X X X Extracts X X X X ..... h credit merely on the ground of surrender of registration certificate or on the ground of availing the exemption benefit under a notification granting such exemption based on value or quantity of clearances - Decided in favour of the assessee - E/142/2005 - 305/2011-EX(PB) - Dated:- 15-3-2011 - Justice R.M.S. Khandeparkar, Shri Rakesh Kumar, JJ. REPRESENTED BY : S/Shri B.L. Narasimhan and Hemant Bajaj, Advocates, for the Appellant. Shri Sunil Kumar, DR, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President]. Heard the advocate for the appellants and DR for the respondent. This appeal arises from order dated 28th October 2004 passed by Commissioner (Appeals), Jalandhar. By the impugned order the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit to the tune of Rs. 10,42,371/- being the opening balance of the Cenvat credit in March 2001 which was lying in the balance account at the time of surrender of the registration in December 2000. During the period from September 2001 to March 2002 the appellants utilised the said balance credit availed in relation to the capital goods. Consequently, having revealed the same from RT-12 return, show cause notice dated 21st December 2001 and 30th October 2002 came to be issued to the appellants which were contested by the appellants and consequently the said order came to be issued. 3. While assailing the impugned order the learned advocate for the appellants submitted that the authorities below erred in denying the credit availed on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03 (162) E.L.T. 882 (Tri. - Chennai) and CCE, Pune-II v. Arihant Twisting Industries reported in 2008 (223) E.L.T. 258 (Tri. - Mumbai). He further submitted that considering the elaborate discussion justifying the finding in the impugned order, the same do not call for interference. 5. It is not in dispute that the registration certificate was surrendered by the appellants on 13th December 2000. However, the said surrender was on account of exemption limit of SSI unit having been raised to Rs. 1,00,00,000/- under Notification No. 47/2000 dated 1st September 2000. As the law stood at the relevant time, undisputedly the appellants being entitled to avail the benefit under the said notification were not required to be armed with the excise r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a financial year, and who has been availing of the credit of the duty paid on inputs before such option is exercised, shall be required to pay an amount equivalent to the credit, if any, allowed to him in respect of inputs lying in stock or used in any finished excisable goods lying in stock on the date when such option is exercised and after deducting the said amount from the balance, if any, lying in his credit, the balance, if any, still remaining shall lapse and shall not be allowed to be utilised for payment of duty on any excisable goods, whether cleared for home consumption or for export. 8. It is not in dispute and indeed cannot be disputed that Rule 57AG(2) is entirely in relation to the inputs. Plain reading of the said sub-r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. The Rule 57AD(3) provides that no credit of the specified duty shall be allowed on capital goods which are used exclusively in the manufacture of exempted goods (other than final products which are exempt from the whole of the duty of excise leviable thereon under any notification where exemption is granted based upon the value or quantity of clearances made in the financial year). Apparently the exclusion from availing the benefit of the credit earned on the duty paid on the capital goods in relation to those used in the manufacture of the exempted goods is not applicable in cases where the exemption from payment of duty on final products is availed on the basis of a Notification granting such exemption is based upon the value or qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acturing activity had continued availing the benefit of SSI notification, it cannot be said that the appellants were not entitled to avail the benefit of the balance credit available with them at the time of earlier surrender of registration and more particularly in view of proviso to Rule 57AC(2)(b). 13. In J.R. Herbal Care India Ltd. v. CCE, Noida (supra) case it was clearly observed that mere surrender of registration will not disentitle the manufacturer from availing such credit. Obviously the observation was made after taking note of relevant provision of law. It is true that the decision relates to the period subsequent to the enforcement of Cenvat Credit Rules, 2004. However, the situation is not different from what has been descri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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