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TMI Blog2018 (9) TMI 817X X X X Extracts X X X X X X X X Extracts X X X X ..... se duty paid on capital goods during the period March, 2006 to September, 2008 is correct or otherwise. 4. Appellant herein is manufacturer of 100% Cotton Knitted dyed Fabric and registered with the authorities. The Cotton Knitted Fabric manufactured by the appellant were covered under Notification 29/2004-CE and 30/2004-CE both dated 09.07.2004; Notification No. 29/2004 prescribes effective rate of duty, while Notification No. 30/2004 fully exempts the goods subject to the condition that no CENVAT credit shall be availed on inputs under the Provisions of CENVAT Credit Rules. The appellant had informed the Range Superintendent vide letter dated 18.11.2006 for proposal to avail the benefit of Notification No. 29/2004-CE and also Notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e duty paid on capital goods availing simultaneously, the benefit of Notification No. 29/2004 & 30/2004. It is his submission that the duty discharged by the appellant on the finished goods subsequently is not disputed. It is his submission that the decision of the S.T. Cottex Exports Pvt. Ltd., was taken in appeal by the Revenue before the Hon'ble High Court of Punjab & Haryana upheld the order of the Tribunal by dismissing the appeal filed by the Revenue as reported at [2011 (268) ELT 318]. 6. Learned Departmental Representative on the other hand submits that the decision of the Tribunal in the case of Surya Roshni Ltd., which has been upheld by the Apex Court settles the law, as to CENVAT credit cannot be availed on the capital goods wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... identical set of facts were agitated by the Revenue before the Hon'ble High Court. We reproduce the entire judgment: "This appeal has been preferred by the assessee under Section 35G of the Central Excise Act, 1944 against order dated 18-1-2010 [2010 (261) ELT 807 (Tribunal)] passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi (for short 'the Tribunal') seeking to raise the following substantial questions of law :- "(i) Whether the Hon'ble Tribunal is right in upholding admissibility of cenvat credit taken on capital goods, at the time of receipt of which, the final product was exempted from payment of duty and thus, such capital goods exclusively used in the manufacture of exempted goods exempted vide Notification N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant submits that even though Notification dated 9-7-2004 was in force, the same provided for optional duty and the assessee never invoked the said notification. In such a situation, the view of the Tribunal is against the view taken by it in CCE, Indore v. Surya Roshni Ltd. - [2003 (155) ELT 481 (T)] which was upheld by the Supreme [2003 (158) ELT A273 (S.C.)]. As per the said judgment, on capital goods which are exclusively used in manufacture of exempted goods, credit was not available. Subsequent withdrawal of exemption could not validate the credit wrongly taken. 5.We are unable to accept the submission. Present is not a case of subsequent withdrawal of exemption as in the case of Surya Roshni Notification dated 9-7-2004 is prior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C.E. provides full duty exemption subject to the condition that no input duty credit has been taken, Notification No. 29/04-C.E. issued on the same date provides optional rate of duty of 4% adv. without any condition. Therefore, the ratio of Tribunal's judgment in the case of Surya Roshni Ltd. (supra) is not applicable to the facts of this case." 6. In view of finding of the Tribunal that the assessee availed benefit of notification under which 4% duty was payable, it cannot be held that assessee used the capital goods in manufacture of exempted goods in which case the assessee could not claim the benefit of cenvat credit under Rule 6(4). No substantial question of law arises. 7. Accordingly, the appeal is dismissed." 9. We find in anoth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods. There is no period of limitation prescribed for availing the Cenvat credit. Once the duty is paid on the capital goods, the assessee would get a right to avail the Cenvat credit if and when they have to pay duty on excisable goods." 10. In the case in hand, it is recorded earlier herein above, the appellant had specifically informed the Range Superintendent on 18.11.2006 that they would be discharging duty liability on the finished goods i.e., Cotton Knitted Fabrics under Notification No. 29/2004 and also claiming exemption under Notification No. 30/2004 which would in turn mean that they had informed the authorities they intended to use the machines on which CENVAT credit on capital goods were availed for manufacturing of dutiable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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