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TMI Blog2013 (7) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... fication No. 29/2004-CE dtd. 09.07.2004 as well Notification No.30/2004-CE dtd.09.07.2004. Notification No. 29/2004-CE prescribes a concessional rate of duty of 4% for yarn without any condition and as such the appellant could avail input duty Cenvat Credit. This exemption Notification was being availed in respect of the yarn manufactured and cleared for export. The yarn meant for export was being cleared on payment of duty at the rate of 4% adv. and was being exported under rebate claim. Notification No. 30/2004-CE provides for full duty exemption to the items specified thereunder subject to condition that no input duty credit is availed. This exemption was being availed in respect of clearances of yarn intended for domestic consumption. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual amount were imposed. On appeals being filed to Commissioner (Appeals) against these orders, the same were upheld vide Order-in-Appeal 435-436/CE/Appeal/CHD-II/2012 dtd. 01.10.2012, against which these two appeals have been filed along with stay application. 2. Heard both the sides in respect of stay application. 3. Sh. Rupinder Singh - Advocate, the ld. counsel for the appellant, pleaded that during the period of dispute, the appellant were availing of Notification No. 29/2004-CE under which the Rate of duty is 4% adv., without any condition and also exemption Notification No. 30/04-CE which provides for full duty exemption subject to non-availment of input duty credit, that the goods meant for export were cleared on payment of 4% adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 4% duty under Notification No. 29/04-CE also the Appellant had not availed input duty credit, that the cleared made on payment of 4% duty under Notification No. 29/04-CE are actually the clearance of exempted goods and it is the Notification No. 30/04-CE which was applicable in respect of these clearances and the amount paid as duty can not be treated as duty, as once an assessee is eligible for full duty exemption under an exemption Notification, there is no option for him to pay duty, that looked at from this angle, the capital goods, in question, have been exclusively used in or in relation of manufacture exempted final products and hence the Appellant were not eligible for capital goods Cenvat Credit. He, therefore, pleaded that this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learances would be have to be treated as clearances of fully exempted goods made under Notification No. 30/2004-CE and accordingly the Appellant would not be eligible for capital goods Cenvat Credit. This contention of the Department is totally in-correct, as Exemption Notification No. 29/2004-CE is an unconditional exemption which prescribes a rate of duty of 4% advelorum. There is no condition in this notification that for availing of this exemption prescribing concessional rate of duty of 4% adv., input duty Cenvat Credit must be availed. The condition of non-availment of input duty Cenvat Credit is for nil duty under Notification No. 30/2004-CE. But this does not mean that an assessee not availing input duty credit can not avail the exe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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