9911796707
TMI Blog2013 (10) TMI 662X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of input duty Cenvat Credit is for nil duty under Notification No. 30/2004 - 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 this point of view, the Depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eared 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 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 Notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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