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TMI Blog2015 (9) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... 9/2004-C.E., dated 9-7-2004 as well Notification No. 30/2004-C.E., dated 9-7-2004. Notification No. 29/2004-C.E. prescribes a concessional rate of duty of 4% for yarn without any condition and as such the appellant could avail input duty Cenvat credit. This exemption Notification was being availed in respect of the yarn manufactured and cleared 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-C.E. 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. Howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st and penalty of equal amount were imposed. On appeals being filed to Commissioner (Appeals) against these orders, the same were upheld vide Order-in-Appeal 435-436/CE/Appeal/CHD-II/2012, dated 1-10-2012, against which these two appeals have been filed. 2. Heard both the sides. 3. Sh. Rupinder Singh, Advocate, the ld. counsel for the appellant, pleaded that during the period of dispute, the appellant were availing of Notification No. 29/2004-C.E. under which the rate of duty is 4% adv., without any condition and also exemption Notification No. 30/2004-C.E. 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 me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the clearance made on payment of 4% duty under Notification No. 29/2004-C.E. are actually the clearance of exempted goods and it is the Notification No. 30/2004-C.E. which was applicable in respect of these clearances and the amount paid as duty cannot be treated as duty, as once an assessee is eligible 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. 5. I have considered the submissions from both the sides and perused the record. 6. There is no dispute that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds Cenvat credit. This contention of the Department is totally incorrect, as Exemption Notification No. 29/2004-C.E. is an unconditional exemption which prescribes a rate of duty of 4% ad valorem. There is no condition 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-C.E. But this does not mean that an assessee not availing input duty credit cannot avail the exemption under Notification No. 29/2004-C.E., as this is an unconditional Notification. When an assessee does not avail of input duty credit, he has option to pay 4% duty under Notif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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