TaxTMI 
TaxTMI 
2020 (6) TMI 59
X X X X Extracts X X X X
X X X X Extracts X X X X
....opted for exemption Notification No.30/2004-CE dated 09.07.2004 w.e.f. 1st April, 2016. In compliance to Rule 11 (3) (i) of the Cenvat Credit Rules, 2004, they have reversed the Cenvat Credit amounting to Rs. 54,85,417/- attributable to input, input contained in WIP and finished goods in the stock. After reversal of Cenvat Credit, there was some accumulated balance of CENVAT Credit was available. A show cause notice was issued proposing the demand of CENVAT Credit which was lying in balance even after aforesaid reversal on the ground that in terms of Rule 11 (3) (ii) the balance, if any, still remaining after reversal of credit on input, input in process, and contained in final products. The said balance shall also lapse. The adjudicating a....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... ii. Patodia Filaments Pvt. Ltd., Shivkaran Choudhary v. CCE & ST, VAPI (Vice - Versa), 2019 (4) TMI 435 - CESTAT, Ahmedabad. iii. Patodia Filaments Pvt. Ltd. v. CE & ST, Daman, 2019 (8) TMI 201 - CESTAT, Ahmedabad. iv. Kanchan India Ltd. v. CCE, Udaipur, 2019 (1) TMI 310 - CESTAT- New Delhi. v. CCE, Udaipur v. Sitaram India Ltd., 2018 (10) TMI 11 - CESTAT - New Delhi. vi. Wearit Global Ltd. v. CCE, Udaipur, 2018 (8) TMI 1094 - CESTAT-New Delhi. vii. Mahabir Jute Mills Ltd. v. CCE & ST, Allahabad, Final Order No. 71798 - 71800/ 2018 dated 27.07.2018. 4. Heard both sides and perused the records. 5. We find that there is no dispute on the fact that the respondent has opted for exemption Notif....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... it is clear that as per sub-clause (2), the credit shall be lapsed only if the exemption under the Notification is absolute that means in case of conditional Notification the provision of lapsing of credit will not apply. This issue has been considered by this Tribunal in various judgments. 7.1 In case of Patodia Filaments Pvt. Ltd. (supra), the Tribunal has observed as under:- "6. Heard both the sides and perused the records. We find that the notification No. 30/2004-CE dated 09.07.2004 is not an absolute notification but a conditional notification issued under section 5A. The notification has the condition of non availment of cenvat credit. The subrule (3) (i) and (ii) of Rule 11 of the CCR, 2004 are separate. In the present ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....coordinate benches, which is as under : "3. Ld. Advocate for the appellant while relying upon the decision of Jansons Textile Processors vs. Commissioner, Central Excise & ST Salem - 2018 (7) TMI 850 (CESTAT), Chennai has submitted that the present case is squarely covered under the said decision. Actually Rule 11 sub rule (1) of CCR is applicable to him. It is impressed upon that decision under challenge has wrongly relied upon Rule 11 sub rule (2) of CCR while denying utilization of the unutilized credit with the appellant. Order is accordingly prayed to be set aside and appeal is prayed to be allowed. 4. Ld. DR while justifying the impugned order has impressed upon findings in para 21.2 thereof. It is impressed upon tha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ontained in the final product lying in stock, if, (i) he opts for exemption from whole of the duty of excise leviable on the said final product manufactured or produced by him under a notification issued under section 5A of the Act; or (ii) the said final product has been exempted absolutely under section 5A of the Act, and after deducting the said amount from the balance of CENVAT credit, if any, lying in his credit, the balance, if any, 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. 5.2 It is pertinent t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....with distinctively different qualifying factors and conditionalities. 5.4 In sub rule 3 (i), the assessee has an option to avail of a particular notification or otherwise; when such assessee takes such option, he will be required to pay an amount equivalent to cenvat credit, if any, ..................... 6. In the event, the findings and decision of the lower appellate authority to the contrary in the impugned order is not on sound legal footing. The impugned order then cannot sustain and will require to be set aside, which we hereby do. Appeal is allowed with consequential benefits, if any, as per law. 7. Following these 2 decisions and indulging the facts at length, we are of the considered opinion that....