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TMI Blog2024 (3) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... n be said to have been met and in such circumstances, the Tribunal has rightly allowed the appeal of the respondent-Assessee by quashing and setting aside the demand raised by the appellant. No question of law, much less any substantial questions of law, arises from the impugned order passed by the Tribunal - appeal dismissed. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA AND HONOURABLE MR. JUSTICE NIRAL R. MEHTA Appearance: For the Appellant(s) No. 1 : Mr CB Gupta(1685) For the Opponent(s) No. 1 : None ORAL ORDER (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1. Heard learned advocate Mr. C.B. Gupta for the appellant. 2. By this Tax Appeal under Section 35G of the Central Excise Act, 1944, the appellant has proposed the following questions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... % of the value of goods treating the goods as exempted which appeared to be wrong as condition to Notification No. 30 of 2004 in view of the provisio to the said notification. 3.3. The adjudicating authority confirmed the demand of Excise Duty denying the exemption under Notification No. 30 of 2004 on the ground that once the assessee had availed the Cenvat Credit on inputs, there is contravention of the condition of the Notification and hence, the assessee was not entitled to the exemption Notification. 3.4. Being aggrieved, the respondent-assessee preferred the Appeal before the Tribunal. The Tribunal after considering the provisions of Rule 6(3) of the Rules and undisputed fact that the assessee reversed the Cenvat Credit by 6% of the va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided that in order to avail notification appellant should not have availed Cenvat credit. 6. The relevant sub-Rule (3D) of Rule 6 is reproduced below:- (3D) Payment of an amount under subrule (3) shall be deemed to be CENVAT credit not taken for the purpose of an exemption notification wherein any exemption is granted on the condition that no CENVAT credit of inpots and input services shall be taken. From the above sub-rule (3D) it is clear that even though assessee availed Cenvat credit but in compliance of Rule 6(3), they reversed the credit which will amount to non-availment of credit. With this statutory provision once the appellant complied with the provision of Rule 6(3) by reversing the credit, the condition of the notification au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e so, the condition of Notification No. 30/2004-CE stands compiled. 6. The very same issue has been considered by this Tribunal in the case of Spentex Industries Limited (supra) wherein the following order was passed:- 5. The short point for decision is the eligibility of the appellant for exemption under Notification No. 30/2004 CE. when they have reversed 6% of the exempted goods in terms of Rule 6(3)(i). We find the appellants claim on the applicability of sub-rule (3D) of Rule 6 is legally sustainable. The said sub-rule provides for a deeming provision to the effect that payment of amount under subrule (3) should be considered as credit not taken for the purpose of such exemption notification. The appellant's case is covered by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the exemption Notification No. 30/2004-CE, does not sustain. Accordingly, the impugned order is set aside and the appeal is allowed. From the above decision of this Tribunal, it can be seen that identical and legal issue involved in the present case, therefore, following the aforesaid decision, the demand in the present case is not sustainable. 5. The Tribunal has followed the decision in case of M/s. Vineet Polyfab Pvt. Limited Versus Commissioner of Central Excise ST, Surat of the Co-ordinate Bench wherein, the Tribunal has referred to and relied upon the decision in case of Life Long Appliances Limited Versus CCE on the same issue affirmed by the Hon ble Supreme Court reported in 2006 (196) ELT A144 (SC). The Tribunal has therefore ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for providing such taxable service, shall be taken then the amount specified in clause (1) shall be seven per cent of the value so exempted : Provided also that in case of transportation of goods or passengers by rail, the amount required to be past under clause (1) shall be an amount equal to two per cent of value of the exampled services. (3D) Payment of an amount under subrule (3) shall be deemed to be CENVAT credit not taken for the purpose of an exemption notification wherein any exemption is granted on the condition that no CENVET credit of input service shall be taken. 7. On bare perusal of the above Rules, it is clear that once the assessee has reversed the 6% of the value of the goods treating such goods as exempted as per the S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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