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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 ..... iled. 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 exemption under Notification No. 29/2004-CE, 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-CE and also the option to clear goods at nil rate of duty under Notification No. 30/2004-CE - When two exemption Notifications are available to an assessee, he can opt for the Notification most beneficial for him - Department can not force the assessee to avail a particular exemption Notification. - Decided in favor of Assessee. Stay on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended for domestic consumption. However during the period of dispute the appellant had not taken any input duty credit, either in respect of goods cleared at nil rate of duty under notification No. 30/2004-CE or in respect of the goods cleared under Notification No. 29/04-CE, on payment of duty at 4% and they have availed Cenvat Credit in only respect of the capital goods. The Department was of the view that since in respect of clearances of export under rebate claim, where the goods had been cleared under Notification No. 29/04-CE on payment of 4% duty, the appellant were eligible for full duty exemption, as they satisfied the condition for Notification No. 30/04-CE but they still chose to pay duty under Notification No. 29/2004-CE, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt were cleared on payment of 4% adv. duty and the goods meant for domestic consumption were cleared at nil rate of duty, that in respect of both the type of clearances input duty Cenvat Credit was not availed and only capital goods Cenvat Credit was availed for which there is no prohibition in Notification No. 30/04-CE, that Notification No. 29/04-CE prescribing 4% duty is without any condition and therefore just because no input duty credit was taken, the Appellant can not be forced to avail full duty exemption under Notification No. 30/04-CE, that the goods cleared under Notification No.29/04-CE can not be treated as exempted goods covered by Notification No.30/04-CE, that since the capital goods were not exclusively used for exempted go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it. He, therefore, pleaded that this is not a case for waiver, as the Appellant do not have prima facie case in their favour. 5. I have considered the submissions from both the side and perused the record. 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-CE and clearances for export had been made on payment of 4% duty under Notification No. 29/2004-CE. 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. 30/04-CE. Thus the Appellant even in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... input duty credit can not avail the exemption under Notification No. 29/2004-CE, 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-CE and also the option to clear his goods at nil rate of duty under Notification No. 30/2004-CE 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 can not 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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