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TMI Blog2015 (2) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... 04-CE. Thus the Appellant even in respect of clearances made under Notification No.29/2004-CE also, had not availed input duty credit, though in respect of these clearances, they could have availed the input duty Cenvat Credit. The point of dispute is as to when the appellant have not availed input duty credit, whether they have option to avail the Notification No. 29/2004-CE where the rate of duty is 4%. The Department s contention is that once the appellant have not availed any input duty credit and they have become eligible for Notification No.30/2004-CE, they have no option but to avail of the exemption notification 30/2004-CE only and they can not opt from Notification No.29/2004-CE and pay 4% the duty and in such a situation if any du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty, the capital goods can not be treated as having been used exclusively in the manufacture of exempted goods and Cenvat Credit in respect of the same can not be denied. - impugned order deserves, no merits, hence the same are set aside. - Decided in favour of assessee. - Excise Appeal No. E/58135 & 58136/2013 -EX(SM) - Final Order No. 50005-50006/2015-EX-(SM) - Dated:- 2-1-2015 - Hon ble Mr Ashok Jindal,JJ. For the Appellant : Shri Rupender Singh, Advocate For the Respondent : Shri R.K. Mishra, DR ORDER Per Ashok Jindal: Facts giving rise to these two appeals are, in brief, as under:- 1.1 The appellant are manufactures of Yarn. During period from Sept., 2009 to May,2010, they received capital goods in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... still chose to pay duty under Notification No. 29/2004-CE, the amount paid towards duty can not be treated on duty but only a deposit and the goods have to be treated as the exempted goods cleared under Notification No. 30/04-CE and since the capital goods, in question 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 admissibly in respect of these capital goods. On this basis, the Department issued two Show Cause Notice both dtd. 01.10.2010 for recovery of allegedly wrongly availed capital goods amounting to ₹ 4,88,798/- along with interest and also for imposition of penalty. These Show Cause Notice were adjudicated by the Deputy Commissioner by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacture of exempted goods, the provision of Rule 6(4) of Cenvat Credit Rules,2004 are not applicable and capital goods Cenvat Credit can not be denied, that the Appellant have a strong case on merit , therefore it is prayed that the impugned orders be set aside. 4. Shri R.K. Mishra, learned departmental representative, opposed the contentions of the learned counsel and emphasized that while there is no dispute that a part of the clearances of yarn had been made under Notification No.30/2004-CE at nil rate of duty without availing input duty credit and clearances for export had been made under Notification No. 29/04-CE at 4% adv. duty, that in respect of clearance on payment of 4% duty under Notification No.29/04-CE also the Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as to when the appellant have not availed input duty credit, whether they have option to avail the Notification No. 29/2004-CE where the rate of duty is 4%. The Department s contention is that once the appellant have not availed any input duty credit and they have become eligible for Notification No.30/2004-CE, they have no option but to avail of the exemption notification 30/2004-CE only and they can not opt from Notification No.29/2004-CE and pay 4% the duty and in such a situation if any duty payment has been made, it would have to be treated as deposit and the clearances 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 capit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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