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TMI Blog2024 (7) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... t a time then the more beneficial provisions should be extended to the assessee. In this regard, support of the Hon ble Supreme Court judgment in the case of SHARE MEDICAL CARE VERSUS UNION OF INDIA [ 2007 (2) TMI 2 - SUPREME COURT] taken, in the said judgment the appellant s claim of Notification No. 64/88-Cus., dated March 1, 1988 was denied. However, during the relevant period the goods of the assessee was also covered under para 3 of the table of exemption. The Hon ble APEX Court held that if the benefit of para 2 of exemption is not available then assessee should be given the benefit under para 3. Accordingly, when two benefits are available it is the option to the assessee to chose the more beneficial. In the present case, appellant have claimed the Cenvat Credit in respect of such spare parts under capital goods which is in order. In the present case the appellant has option to avoid the Cenvat Credit on spare parts either under capital goods or under input. When this be so then condition of the notification No.30/2004-CE does not get violated. Accordingly, the appellants are entitled for the exemption notification No 30/2004-CE and simultaneously, they are also entitled for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeals. Therefore, the present appeals before this Tribunal. 2. Shri S. J. Vyas Learned Counsel, appearing on behalf of the appellant submits that the appellants have filed the refund claims for taking credit for the reason that they were under apprehension that if at all the credit on the spare parts is considered as inputs, the effect would have been denial of exemption notification No. 30/2004-CE dated 09.07.2004. Therefore, there was no option except to claim the credit because of the interpretation of thedefinition of Input /capital goods are involved. It is his submission that since the spare parts of the capital goods is clearly covered under capital goods, the appellant s claim for Cenvat Credit is in respect of capital goods which is not barred as per the notification No.30/2004-CE. Though the capital goods having value less than Rs.10,000/- is included in definition of Input but the same was not excluded from the definition of the Capital Goods . Therefore, it is the option of the assessee whether he takescredit under the capital goods or inputs. Without prejudice, he further submits that now after the introduction of GST from 01.07.2017 the Cenvat Credit in the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt s claim of Notification No. 64/88-Cus., dated March 1, 1988 was denied. However, during the relevant period the goods of the assessee was also covered under para 3 of the table of exemption. The Hon ble APEX Court held that if the benefit of para 2 of exemption is not available then assessee should be given the benefit under para 3. Accordingly, when two benefits are available it is the option to the assessee to chose the more beneficial. Relevant para 16 of the judgment is reproduced below:- 16. In the instant case, the ground which weighed with the Deputy Director General (Medical), DGHS for non-considering the prayer of the appellant was that earlier, exemption was sought under category 2 of exemption notification, not under category 3 of exemption notification and exemption under category 2 was withdrawn. This is hardly a ground sustainable in law. On the contrary, well settled law is that in case the applicant is entitled to benefit under two different Notifications or under two different Heads, he can claim more benefit and it is the duty of the authorities to grant such benefits if the applicant is otherwise entitled to such benefit. Therefore, non-consideration on the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that product is squarely and more specifically covered by Notification No. 59/88-Cus and rejected the assessee s contention. CESTAT held as under : 9. We have carefully considered the matter. We find that there is no dispute and it is an admitted position that the goods imported were optical time domain reflectometer. Optical time domain reflactometer are specifically described in Notification No.. 59/88-Cus., dt. 1-3-1988 which provided exemption to the goods specified in the Table annexed to that Notification No. 59/88-Cus., which was falling under Chapters 84, 85 or 90 of the Customs Tariff. The exemption was to the extent of the duty as was in excess of the amount calculated at the rate of 55% ad valorem. Subsequently, another Notification No. 96/91-Cus., dt. 25-7-1991 was issued which exempted the goods falling within the Chapters 82, 84, 85 and 90 of the Customs Tariff which was used in the electronic industries. The exemption available was to the extent of duty which was in excess of the amount calculated at 20% ad valorem. At serial No. 53 of the Table the following goods were covered : Automatic testing or marking or printing or taping machine or any combination thereof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment in the case of H.C.L. Ltd (supra) appellant s claim of Cenvat Credit on spare parts under capital goods is absolutely in order and legal. 4.3 In the present case, appellant have claimed the Cenvat Credit in respect of such spare parts under capital goods which is in order. In the present case the appellant has option to avoid the Cenvat Credit on spare parts either under capital goods or under input. When this be so then condition of the notification No.30/2004-CE does not get violated. Accordingly, the appellants are entitled for the exemption notification No 30/2004-CE and simultaneously, they are also entitled for the Cenvat Credit on the spare parts even though, the value thereof is upto Rs.10,000/- under the category of capital goods. Therefore, we are of the clear view that the appellants are legally entitled for the Cenvat Credit. As regard the submission of the appellant that in the event of eligibility of the Cenvat Credit on the parts of the capital goods in the present case they are entitled for the cash refund in terms of Section 142(3) of CGST Act read with Section 11B. This submission has strong force and we are of the view that since we have taken a view that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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