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TMI Blog2015 (10) TMI 846X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted fact that the CENVAT Credit so availed have been utilized only after Nov. 05 whereas the production of dutiable goods started admittedly in June, 05. Thus, I hold that the respondent assessee is entitled to CENVAT Credit on the capital goods in question - Decided against Revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... ture of both exempted as well as dutiable products relying on the finding of the adjudicating authority. It was further observed that Rule 6 of Cenvat Credit Rules, 2002 provides that CENVAT Credit is not admissible on capital goods which are used exclusively in the manufacture of exempted finished goods, which are not the facts obtaining in the assessee case. Accordingly, it was held that the assessee have rightly taken CENVAT Credit on the capital goods in question and have used for manufacture of both the exempted and capital goods. The Commissioner (Appeals) has recorded the following findings, which are reproduced for ready reference: - "7. I have carefully gone through the case file and documents available on records. From the records, I find that my predecessor had remanded back the case with the direction to verify whether the appellants had utilized the said capital goods towards manufacture of dutiable i.e. Gatorade and Lipton Ice Tea as well as exempted goods i.e. slice as claimed by the appellants. The appellants also submitted the copies of ER-1 for the relevant period to the respondents in support of their claim. Respondent in the finding portion of the Order-in-Orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Balaji Mills ltd, the Modvat credit cannot be denied to the assessee when the capital goods are used both for manufacture of dutiable and exempted goods. In the instant case, the assessee utilized the capital goods exclusively for manufacture of exempted final products during the material period. Thus, it is not a case where the capital goods were utilized for manufacture of both dutiable and exempted products. Thus the question for determination before this Tribunal is whether the respondent assessee in view of the fact that it manufacture exempted goods till May, 2005 is entitled to CENVAT Credit under the fact that the dutiable goods are manufactured from June, 05, relying on the ruling in the case of Commissioner of Central Excise Vs. Surya Roshni Ltd. - 2004 (177) ELT 986 (Tri-Del), wherein it has been held that availability of Modvat credit on capital goods, to be looked into at the time of receipt of capital goods in factory premises of the appellant. Capital goods were used for manufacture of exempted products at the time of installation of the machinery and its subsequent use after one year or more in manufacture of final products chargeable to duty will not make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conomic life time. Since the word excisable used under Rule 6(4) means that no expansion and through out its life time. In the facts of the present case, as the capital goods have used for manufacture of both exempted and dutiable goods as per the findings recorded by the adjudicating authority. Therefore, the disability in Rule 6(4) is not applicable. 4.1 The learned Counsel further distinguishing the ruling in the case of Surya Roshni (supra), states, as the said decision deals with admissibility of CENVAT Credit of duty paid on capital goods installed which were used in the production of non-dutiable goods at the time of receipt of such capital goods. Subsequently the goods in question become dutiable and accordingly, Surya Roshni availed CENVAT Credit on such capital goods, which are not the facts obtaining in the case of the respondent assessee. In the respondent assessee case, it is the fact apparent on the face of record that it had served intimation dated 8.4.2004 received by the concerned Inspector on 23.4.2004, wherein the assessee informed that they have installed the new line (hot fill line) in their factory. The said line is capable to produce varieties of beverages i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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