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TMI Blog2013 (8) TMI 387X X X X Extracts X X X X X X X X Extracts X X X X ..... stainable - Following decision of CHANDRAPUR MAGNET WIRES (P) LTD. Versus COLLECTOR OF C. EXCISE, NAGPUR [1995 (12) TMI 72 - SUPREME COURT OF INDIA] - Decided in favour of assessee. - E/424/2010 - Stay Order No. 1749/2012-EX(BR)(PB) - Dated:- 17-10-2012 - Ajit Bharihoke and Rakesh Kumar, JJ. Shri S. Ganesh, Sr. Advocate, for the Appellant. Shri I. Beg, DR, for the Respondent. ORDER The appellant are manufacturers of wool top (Sub-heading 51052910), polywool yarn (Sub-heading 550094290), Acrylic wool yarn (Sub-heading 55093200), Polyster Yarn (Sub-heading 55092200), Polyster top (Sub-heading 55062000), All wool yarn (Sub-heading 51071090), polywool waste etc. chargeable to Central excise duty. They acquired duty paid fiber ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5/3/2007 dated 1-2-2007. The department was of the view that during the above mentioned period, the appellant were not eligible for duty exemption under Notification No. 30/2004-C.E. as - (a) during this period, they had cleared some dutiable final products by availing cenvat credit of Rs. 9,80,540/- available in the RG-23 part-II Register as on 31-1-2007, and; (b) the appellant do not satisfy the second condition for Notification No. 30/2004-C.E., according to which the benefit of this exemption is available provided the manufacturer does not have the facility in the factory (including plant and equipment) for producing the goods of heading nos. 5501, 5502, 5503 and 5504. According to the department, since the appellant have Rectilin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he condition of Notification No. 30/2004-C.E. has not been fulfilled. 1.4 Against the above order of the Commissioner, this appeal along with stay application has been filed. 2. Heard both the sides in respect of stay application. 3. Shri S. Ganesh, Sr. Advocate, ld. Counsel for the appellant, pleaded that both the conditions for availment of full duty exemption under Notifications No. 30/2004-C.E. has been satisfied, that during the period from 1-2-2007 to August, 2008, the appellant were taking cenvat credit only on the proportionate quantity of inputs used in the manufacture of dutiable final products and it is not the allegation of the department that they have also taken cenvat credit in respect of the inputs used for the manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on No. 30/2004-C.E. separate account of inputs were not being maintained, and that some cenvated availed inputs in stock as on 31-1-2007 were used in the manufacture of goods at nil rate of duty under Notification No. 30/2004-C.E. He, therefore, pleaded that duty demand has been correctly confirmed against the appellant and penalty has been correctly imposed on them and hence, this is not a case for waive from the requirement of pre-deposit. 5. In rejoinder, S. Ganesh, learned senior Counsel pleaded that there is no allegation in the show cause notice that during the period of dispute i.e. period from 1-2-2007 to August, 2008, the appellant manufactured finished products out of the cenvat credit availed inputs lying in stock as on 1-2-200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e find that in terms of the Board s circular dated 1-2-2007 what was required for a manufacturer availing of Notification No. 29/2004-C.E. as well as Notification No. 30/2004-C.E. was to avail cenvat credit at the end of the month only in respect of proportionate quantity of inputs which were used in the manufacture and clearance of the goods on payment of duty and as such, in this Circular, there is no requirement that separate account or inventory of the inputs meant for exempted and dutiable finished products must be maintained. There is no allegation in the show cause notice that the appellant have taken cenvat credit even in respect of inputs which were used in the manufacture of exempted final products. 7. As regards the department ..... X X X X Extracts X X X X X X X X Extracts X X X X
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