2019 (7) TMI 1257

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....er (the exempted good) under Notification No. 01/2011-CE dated 01.03.2011 and under Notification No. 12/2012-CE dated 17.03.2012 (Serial No. 128). The appellant availed the exemption by paying the duty @ 1% advelorem. Department during scrutiny of ER returns for the quarter ending June, 2012 found that for availing the said exemption no cenvat credit on inputs was to be availed by the assessee however, the appellant/assessee herein has availed the cenvat credit of Rs. 4,89,064/- on capital goods used in manufacture of the aforesaid exempted product. Further observing that no other dutiable product is being manufactured by the appellant that a show cause notice No. 5452 dated 17.08.2012 was served upon the appellant proposing to disallow the....

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....peal is accordingly prayed to be allowed. 4. While rebutting these arguments it is submitted on behalf of the Department that the only condition for availing benefit of impugned exemption Notification was the non-availment of cenvat credit but the appellant had already availed the credit for Rs. 4,89,064/- which has rightly been demanded and the demand thereof has rightly been confirmed. It is impressed upon that even if some amount of the credit availed has been reversed it does not amount to complete reversal. The amount lying unutilised in the cenvat credit account of the assessee does not suo moto amounts to reversal unless and until it has actually been reversed. As such, there is no infirmity in the Order under challenge. Appeal is....

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....st thereupon. The fact however remains is that the amount of Rs. 3,05,772/- is still not been reversed by the appellant. Though the appellant's plea is that the amount is lying unutilised in the cenvat credit account but the un-utilisation thereof till date is not sufficient to reverse the same. Admittedly, there is no such book entry to reverse the remaining amount as well. Admittedly, no subsequent return has been filed by the appellant to reverse the balance amount of the cenvat credit which as per him is still lying unutilised. 7. In the given circumstances, I do not find any infirmity in the Order under challenge where it is held that the cenvat credit on capital goods has been availed by the appellant in contravention of the provis....