TaxTMI 
TaxTMI 
2013 (2) TMI 669
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....re rejected by the Assistant Commissioner of Central Excise, Salem-I Division, Salem stating the reason that the respondents have opted for availing both notification simultaneously only from 10-6-2010 and utilized the Cenvat credit on capital goods received during the period January, 2006 to June, 2007 and taken on 10-6-2010. 3. Being aggrieved by the said orders-in-original, respondents filed appeal before Commissioner (Appeals) who sets aside the impugned orders-in-original and allowed the appeal. 4. Being aggrieved by the impugned orders-in-appeal, the applicant department has filed these revision applications under Section 35EE of Central Excise Act, 1944 before Central Government on the following common grounds : 4.1 The Commissioner (Appeals) has failed to appreciate the legal provisions of Rule 6(4) of the CENVAT Credit Rules, 2004 which prohibits allowing of Cenvat credit on the capital goods used exclusively in the manufacture of exempted goods. Rule 6(4) of the Credit Rules, reads as under : "(4) 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 th....
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....reported in 2007 (216) E.L.T. 133 (Tri.-LB) wherein it has been held that Cenvat credit eligibility is to be determined with reference to the dutiability of the final product on the date of receipt of capital goods. 4.5 Whereas in the case on hand the capital goods are not eligible for Cenvat credit on the date of their receipt in the factory, since the capital goods in question were used exclusively for the manufacture of final product, as the assessee were availing exemption vide Notification No. 30/2004-C.E., dated 9-7-2004. The assessee was well aware of that they were not eligible to take Cenvat credit on capital goods during the exemption period and therefore they have not availed the cenvat credit on capital goods immediately on receipt and availed the same when they started availing the benefit of Notification No. 29/2004-C.E., dated 9-7-2004. 4.6 The Hon'ble Tribunal in the case of Commissioner of Indore v. Surya Roshini, reported in 2003 (155) E.L.T. 481 (T) has held that the availability of Modvat credit is to be looked into at the time of receipt of the capital goods. If the capital goods are exclusively used in the manufacture of exempted products, Modvat c....
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.....L.T. 929 (Tri.-Che.) (iii) Tamilnadu Petro Products Ltd. - 2003 (160) E.L.T. 199 (Tri.-Che.) (iv) Shree Valsad S.K.Udyog Mandali Ltd. - 2008 (228) E.L.T. 561 (Tri.-Ahmd.) (v) J.R. Herbal Care India Ltd - 2010 (253) E.L.T. 321 (Tri.-Del.) (vi) S.T. Kottex Exports Pvt. Ltd. - 2010 (261) E.L.T. 807 (Tri.-Del.). 5. A show cause notice was issued to the respondents under Section 35EE of Central Excise Act, 1944 to file their counter reply. They vide their letter dated 21-1-2012 submitted that : 5.1 At the outset, it is submitted respectfully that the appeal by the department had filed after the lapse of appealable period prescribed under Section 35EE of the Central Excise Act, 1944 and hence the same is liable to be rejected on this ground alone. The appeal had been filed with a petition for condonation of delay. The appeal had been filed even beyond the period available for condonation of delay as prescribed under Section 35EE. The date of receipt of Order-in-Appeal is 31-3-2011, which had been indicated in the Form E.A.8 also by the department. The relevant date for filing appeal is within three months from t....
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....ion Act, 1963, since the appeals were filed with wrong Appellate Forum in good faith. In this regard the following are the case laws for considering the condonation of delay. * Geeta Clearing Agency, Bombay v. CC, Bombay CEGAT - 1986 (26) E.L.T. 841 (Tri.) * Akshra Chhaya v. CC, CEGAT - 1989 (42) E.L.T. 82 (Tri.). In the above CEGAT Orders, it has been held that condonation of delay when appeal filed to wrong authority - Period of pendency with wrong authority excludable. Accordingly, it is prayed that the claim of the respondent that the appeal is time-barred may please be rejected. 7. Government has carefully gone through the relevant case records and perused the impugned orders-in-original and orders-in-appeal. 8. On perusal of records Government observes that before proceeding further the condonation of delay application is to be decided first. In this case the orders-in-appeal was received by the department on 31-3-2011 and appeal was filed before Hon'ble CESTAT on 23-6-2011. CESTAT finally dismissed the appeal on 26-9-2011 for want of jurisdiction in terms of proviso to Section 35B(1) of Ce....
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....al year can be taken for an amount not exceeding 50% and the balance of credit may be taken in any financial year, hence he accordingly allowed the appeal. Now the applicant department has filed this revision application on the grounds stated at Para 4 above. 10. Government notes that the only issue to be decided here is that whether a manufacturer who have opted for full exemption during year 2007 to 9-6-2010 can take Cenvat credit on capital goods imported during the year 2007 which were used exclusively in the manufacture of exempted goods. In the instant case the manufacturer claimed/opted for full exemption during year 2007 onwards for all goods cleared from factory under Notification 30/2004, dated 9-7-2004 and from 10-6-2010 onwards they opted for availment of Notification 29/2004, dated 9-7-2004 for the goods cleared for export and Notification 30/2004, dated 9-7-2004 for the goods cleared for home consumption. It is on records that all the capital goods were received during availment of exemption and as per Rule 6(4) of Cenvat Credit Rules, 2004 no cenvat credit is allowable on capital goods which were exclusively used for manufacture of exempted goods. The relevant ....