TaxTMI 
TaxTMI 
2015 (10) TMI 846
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....ngs Ltd. is engaged in the manufacture of excisable goods viz. Aerated water with and without flavours falling under Chapter Heading No. 2202.21 of Central Excise Tariff Act, 1985. The assessee is also engaged in the manufacture of "Mango Slice" under their brand 'Slice' (fruit pulp) falling under Chapter Heading No. 2202.40 of Central Excise Tariff Act, 1985. The assessee availed CENVAT Credit of duty paid on inputs and capital goods under Cenvat Credit Rules, 2002. During the period Nov. 2003 to May, 2004, the assessee have availed CENVAT Credit of duty paid on machinery which was used in the manufacture of exempted goods i.e. Mango Slice falling under Chapter Heading 2202.40, which was exempted under Notification No. 6/2002 dated 1....
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....sessee had taken CENVAT Credit on capital goods at the time of installation during Nov. 2003 to May, 2004, but the said credit was utilized only from Nov, 2005 onwards i.e. only after commencement of manufacture of dutiable products like Lipton Ice Tea and Gatorade. Since the credit availed was utilized only after commencement of manufacture of dutiable goods, it cannot be said that the capital goods were used for the manufacture of exempted goods only and/or the credit was wrongly availed. The learned Commissioner (Appeals) held in favour of the assessee allowing the appeal holding that the assessee have utilized the machinery in question for manufacture of both exempted as well as dutiable products relying on the finding of the adjudicati....
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....se of ascertaining the fact from ER-1 that the appellants are manufacturing dutiable and exempted products with the said capital goods. The clearance of both the type of goods is evidence from the ER-1 for the month of November, 2005 and December, 2005. Moreover the credit so availed in November 2003 to May 2004 was kept unutilized till November, 2005 and the same was utilized only after the said capital goods had been sued towards manufacture of dutiable goods. 8. I find that appellants have availed credit on capital goods which was intended to be used for manufacture of both dutiable and exempted goods. Initially the capital goods were used in the manufacture of exempted goods and after commencement of production of dutiable goods, the....
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....ly for manufacture of exempted final products during the material period. Thus, it is not a case where the capital goods were utilized for manufacture of both dutiable and exempted products. Thus the question for determination before this Tribunal is whether the respondent assessee in view of the fact that it manufacture exempted goods till May, 2005 is entitled to CENVAT Credit under the fact that the dutiable goods are manufactured from June, 05, relying on the ruling in the case of Commissioner of Central Excise Vs. Surya Roshni Ltd. - 2004 (177) ELT 986 (Tri-Del), wherein it has been held that availability of Modvat credit on capital goods, to be looked into at the time of receipt of capital goods in factory premises of the appellant. C....
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....tter has traveled to the Commissioner (Appeals) in the earlier round of litigation, who vide order dated 30.3.2011 was pleased to remand by holding as under: - "On a reference to the field, it has been reported that the subject capital goods were also being used for manufacture of Gatorade and Lipton Ice Tea, both dutiable goods. The factual aspects need to be verified at a preliminary level with reference to ER-1 and other statutory records. The use of the capital goods in the manufacture of various products also needs to be verified. In case it is found that the appellants have used the capital goods for manufacture of both dutiable and non-dutiable goods, CENVAT Credit cannot be denied". It is further submitted that the Commi....
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.... in their factory. The said line is capable to produce varieties of beverages in pet bottles. The proposed line was being set up to manufacture and fill beverages - both taxable and non-taxable. At the relevant date the assessee had undertaken trial run and there after started commercial production of slice a mango fruit pulp based drink falling under Chapter 2202.40 w.e.f. 7.4.2004. It was further stated in the intimation that the assessee will be using the newly installed production line for manufacture of excisable product, which shall be intimated in due course. The learned Counsel further stated that the ruling of the Tribunal in the case of KS Oils Ltd. (supra) is per incurium and cannot be relied upon since the same has been passed w....