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TMI Blog2018 (3) TMI 1130X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant filed a declaration to take the benefit of Notification No. 49-50/2003-CE dated 10.06.2003 area based exemption for manufacture of the goods. During the pendency of erection of the plant and machinery in the factory premises, the appellant revised their declaration vide their letter dated 29.06.2007 that as the appellant has not manufactured any goods and is not willing to manufacture any goods, they want to lease out their plant and machinery to the manufacture of the said goods. The plant and machinery was leased out and on the lease amount, the appellant started paying service tax under the category of Business Auxiliary Service, therefore, the appellant availed cenvat credit on capital goods installed in their factory premises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal in the case of Surya Roshni Ltd. reported in 2003 (155) ELT 481 (Tri. Del.) the assessee is not entitled to avail cenvat credit. The said order has been affirmed by the Hon'ble Apex Court reported in 2003 (158) ELT A273 SC. The ld. AR also relied on the decision of this Tribunal in the case of Spenta International Ltd. reported in 2007 (216) ELT 133 (Tri. LB.) therefore, he prayed that impugned order qua dropping the proceedings against the assessee is set aside. 6. Heard the parties and considered the submissions. 7. The facts of the case are not disputed by both the sides that initially filed on 04.08.2006 to avail area based exemption under Notification No. 49-50/2003-CE dated 10.06.2003 to clear the goods without payment of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, the decision in the case of Surya Roshni Ltd. (Supra) is not applicable to the facts of this case. Further, the issue involved in the larger bench of this Tribunal in the case of Spenta International Ltd. is all together different from the case in hand. In fact, in the case of Spenta International Ltd. (supra), the larger bench of this Tribunal decided that the date of which the capital goods were received as the date for availment of cenvat credit and hold that on the said date the use of capital goods. In these case, it is on record that the, goods were never used for manufacturing of exempted goods, therefore, the decision of the Spenta International Ltd. (Supra) have not applicable to the facts and circumstances of this case. Moreov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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