AI Drafter 
TaxTMI 
TaxTMI 
2019 (3) TMI 1221
X X X X Extracts X X X X
X X X X Extracts X X X X
....pugned order. 2. The case has a chequered history. The respondents, who are engaged in the manufacture of aerated waters and fruit pulp based drinks has availed the benefit of Cenvat Credit of duty paid on certain capital goods during the period from September, 2004 to August 2004. As fruit pulp based product namely 'Maaza' is exempted from duty, Revenue entertained a view that inasmuch as machine in question was being used only for manufacture of the said product and as such in terms of provisions of Sub-rule (4) of Rule 6 of the Cenvat Credit Rules, 2004 no cenvat credit would be available to them. 3. Accordingly, proceedings were initiated against them by invoking longer period of limitation proposing to deny the benefit of cenvat ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ct. The Tribunal referred to a certificate dated 04.01.2007 from the manufacturer of the machine, and it was concluded that the machine could be used for manufacture of dutiable goods only after modification. The assessee filed a fresh certificate dated 25.09.2009 issued by the manufacturer of the machine before the Hon'ble High Court which was to the effect that no such modification can be done in India since the machines are manufactured in Germany and imported in India. It was submitted that Tribunal mis-took minor adjustment as minor modification, whereas the minor adjustment in machine is not modification. It was further submitted that with effect from October 2006 the appellant started using machine in the manufacture of dutiable good....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... juice Maaza plant and the Filler VP-L-PET is designed to handle carbonated/aerated soft drinks. This is achieved by software changes and minor adjustments. Krones has supplied several similar equipment and fillers which are operating at various sites across the world." The manufacture had certified that machine is designed to handle carbonated/aerated soft drinks by software changes and minor adjustments. The certificate never said that the object can be achieved only after modification. The certificate did not use the word 'modification' which has crept in the order of the Tribunal. More so, before us now the appellant has filed certificate dated 25-9-2009 which indicates that no modification in the machine can be done in India since i....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... some letter to the Department intimating that they would be using this machinery for manufacture of dutiable final product (aerated waters) as well as exempted final product (the fruit pulp based soft drinks), or there is any other evidence indicating that at the time of receipt, the appellant had plans to use the machinery, in question, for manufacture of dutiable as well as exempted final products [like the machinery, without any modification, being capable of manufacture of both the dutiable final products (aerated/carborated waters) as well as exempted final products (MAAZ) along with declaration/intimation of dual use], they would be eligible for Cenvat credit. In this regard, as per the directions of Hon'ble Allahabad High Court in i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....004 addressed by Deputy Commissioner, Bareilly to Deputy Commissioner (Project Import), Customs Nhava Sheva, Mumbai telling that the assessee is engaged in the manufacture of aerated water and has undertaken an expansion programme for production of new product namely 'Maaza'. They intended to import plant and machinery for the said purpose under project import scheme in terms of Notification No 21/2002-Cus dated 01.03.2002 as amended vide Notification No.07/2004-CUS dated 08.01.2004. He also referred to the application dated 24.12.2004 for registration of contract under 98.01 for import of goods to be used for manufacture of aerated water and pulp based fruit drinks. Further, a letter dated 28.12.2004 of Deputy Director (F & VP) NR, Departm....