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TMI Blog2013 (9) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 cannot force the assessee to avail a particular exemption Notification. Rule 6(4) of Cenvat Credit Rule, 2004 - Since capital goods have been used exclusively for manufacture of exempted goods, in view of Rule 6(4) of Cenvat Credit Rule, 2004, no Cenvat Credit would be admissibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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. 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 eli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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. 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 cannot be forced to avail full duty exemption under Notification No. 30/04-CE, that the goods cleared under Notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition 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 cannot 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 cannot force the assessee to avail a particular exemption Notification. Looked at from thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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