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TMI Blog2016 (11) TMI 1220X X X X Extracts X X X X X X X X Extracts X X X X ..... lant had taken Central Excise Registration, to manufacture of excisable goods, which would indicate that appellant had intention to manufacture dutiable goods later. Mere taking registration for manufacture would not make the appellants eligible to take credit on capital goods when the capital goods were exclusively used to manufacture exempted goods at the relevant time of taking credit. The crucial aspect to be considered is the use of the capital goods on the date on which credit is taken. Therefore the credit availed on capital goods in the month of December 2005 is not admissible. Credit not allowed - appeal dismissed - decided against assessee. - Appeal No. E/843/2008 & E/216/2009 - FINAL ORDER No.A/30994 to 30995/2016 - Dated:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled is tabulated below. Month CENVAT availed First 50% in Rs December 2005 ₹ 16,18,522/- (Rs.15,86,777+Rs.31745 Cess) February 2006 ₹ 1,05,485/- March 2006 1,62,672/- Total Credit availed ₹ 18,86,679/- d) Out of the final product Maize Starch, appellants utilized some quantity of Maize Starch and manufactured the other two final products of Yellow Dextrine and Thin Boiled Starch. The appellants started clearing the final products of Yellow Dextrine and Thin Boiled Starch in the Month of February 2006 on payment of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h was later affirmed by the Hon ble Supreme Court as reported in [2003 (158) ELT A 273 (SC)] which laid down the principle that the availability of MODVAT Credit is to be looked into at the time of receipt of the capital goods. If the goods are exclusively used in the manufacture of the exempted products, MODVAT Credit will not be available to the manufacturer. Subsequently, if the exempted product becomes dutiable on account of withdrawal of exemption notification or the manufacturer puts the capital goods to other use would not revive the question of MODVAT Credit which stands determined at the time of capital goods which was received and also placed reliance on M/s Spenta International Vs CCE, Thane reported in [2007 (216) ELT 133 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Roshini case is distinguishable on the facts. That 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 therein become dutiable. In the present case, the facts are entirely different in as much as the appellant manufactures the dutiable products from the exempted product and accordingly the issue is to be decided that when the capital goods which are used in manufacture of both exempted final product as well as dutiable product whether the provision under sub-rule (4) of Rule 6 is applicable. The Ld. Counsel placed reliance on the following judgments where in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing intention to only manufacture the exempted goods viz Maize Starch, they would not have at all registered with the Central Excise department in the month of November 2005 for the reason that they are not at all required to take registration in terms of the above notification No. 36/2001 (CE) (NT) Dated 26.06.2001. 5. Further the appellant has taken registration for Excisable goods. It is no where mentioned that the appellant has taken registration only for Maize starch. Hence the intention of the appellant was very clear right from the beginning to manufacture both exempted as well dutiable products. The intention of the appellant was also very well established from the Memorandum of Association which was filed with Registrar of Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact. 7. The Ld. AR Sh. P.S. Reddy reiterated the findings in the impugned order. He submitted that at the time of availing the 50% credit, the appellant was manufacturing only exempted product. The date of taking the credit has to be taken into consideration, to decide whether, the credit is admissible or not. He urged that the issue is covered by the Apex Court judgment laid in the case of M/s Surya Roshini. 8. I have heard both sides. For better appreciation, the relevant rule is reproduced as under: Rule 6(4) of CENVAT Credit Rules, 2004 No CENVAT credit shall be allowed on Capital goods which are used exclusively in the manufacture of Exempted goods or in providing exempted services other than the final products which are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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