2015 (11) TMI 1336

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....e employees of the Assessee, aggrieved by the common Order-in-Original issued by Commissioner, Central Excise & Service Tax, Vapi in respect of two show cause notices on the same issue for the period April 2006 to July 2010 and August 2010 to January 2012. 2. The facts of the case are that the Appellants had opted on 01.08.2005 to avail duty free clearance of their finished products under the provisions of Notification No.30/2004-CE, dt.09.07.2004. Proviso to the said notification states that provided that nothing contained in this notification shall apply to the goods in respect of which credit of duty on inputs or capital goods has been taken under the provisions of the CENVAT Credit Rules, 2002. In view of the said proviso of the noti....

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....still remaining shall lapse and shall not be allowed to be utilized for payment of duty on any other final product whether cleared for home consumption or for export, or for payment of service tax on any output service, whether provided in India or exported." 3. The contention of the Revenue is that once the sub-rule (3) of Rule 11 of the CENVAT Credit Rules 2004 was introduced, the Appellant should have taken steps to lapse the excess CENVAT Credit he was having in his account. The Appellant failed to do so. They also utilised a portion of the said credit for payment of duty on clearance of the capital goods subsequently. The Adjudicating authority in the impugned order, held that because of this utilization of excess credit they had in....

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....ng authority on identical issue in the case of M/s Rungta Rayong Tex Pvt.Ltd. had dropped the demand in that case vide OIO No.21/DEM/ VAPI/2013, dt.20.03.2013,. He drew the attention of the Bench to the facts of the said case to substantiate that the issue and facts in that case are identical. The learned Counsel filed written submission and compilation of case laws. 6. On the other hand, the learned Authorised Representative for the Revenue strongly contended that the Appellant had not only taken steps to lapse such CENVAT Credit which they had in their account on 01.03.2007 when the sub-rule (3) of Rule 11 of the CENVAT Credit Rules 2004 came into effect, but also utilised a portion of the same to pay duty on clearance of capital goods. ....

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....in the arguments of the learned Authorised Representative that the Appellant should have expunged the credit on 01.03.2007. However, we do not agree that by virtue of not doing so, it will amount to taking of fresh credit. The Appellant had fulfilled the conditions of the notification on the date of their opting for the same. They also continued to observe the said conditions. The only lapse by them was that they had not expunged the excess credit they had in their account when sub-rule (3) of Rule 11 of the CENVAT Credit Rules 2004 was introduced on a subsequent date. We do not agree with the submissions of the learned Counsel for the Appellant that they were not required to expunge the same on 01.03.2007, as they had opted for the benefit....