TaxTMI 
TaxTMI 
2022 (3) TMI 452
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....hyam Gupta, Zonal Finance Head of Company, against the Order-in-Original No. AHM-CEX-003-COMMR-018-13 dated 21.03.2013 2. Briefly stated the facts of the case are that the appellants are engaged in the manufacture of aerated water, Fruit Juice, Fruit Pulp based drinks falling under chapter heading No. 22 of the Central Excise Tariff Act, 1985. The finished goods manufactured by the Appellant were fully exempted prior to 01.03.2011, which thereafter became dutiable under Notification No. 02/2011-C.E. dated 01.03.2011. From 01.03.2011 onwards appellant have opted for paying duty. On scrutiny of ER-1 returns for the month of March 2011 and April 2011, it appears that appellant had taken Cenvat Credit amounting to Rs. 8,50,01,449/- paid on c....
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....Appellant had rightly availed the Cenvat Credit in the month of March 2011 in terms of Rule 4(2)(b) read with Rule 2(a) and Rule 6(4) of the said Rules. Upon perusal of the provisions of CCR, 2004 it is clear that the main condition for eligibility of Cenvat Credit on Capital Goods are being used in manufacture of dutiable final products. 3.1. He submits that the decisions passed in case of CC Vs. Surya Roshni reported in 2003(155)ELT 481 relied upon by the respondent was challenged before the Hon'ble Supreme Court and the same was dismissed on the ground of lack of jurisdiction. The said assessee subsequently filed Reference Application bearing No. MCC No. 2/2004 under Section 35(H) (1) of the Act before the Indore Bench of the Hon'ble ....
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....facturer to take Cenvat Credit only for an amount not exceeding 50% of duty paid on such capital goods in the same financial year. Rule 6(4) provides that Cenvat Credit on capital goods will not be allowed which are used exclusively in manufacture of exempted goods. In the present case appellant received the capital goods during the period between October 2010 and February 2011 and availed cenvat credit in March 2011 and April 2011. Since it is undisputed fact that the final products manufactured by the Appellant became dutiable with effect from 01.03.2011 and the said capital goods were used in manufacture of final products during the same financial year, conditions provided to avail Cenvat Credit has been complied with. He also submits th....
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....both sides and perused the records. The issue involved in the present case to be considered by us is that in case of capital goods though received and installed before the manufacture of a product which earlier was exempted but when the production started become dutiable, whether the appellant is entitled for Cenvat Credit in respect of such capital goods. As per the facts of the case the capital was received in the appellant's factory during the period 13.10.2010 to 28.02.2011. The said capital goods were subsequently used for manufacturing of "Maaza" which was exempted before 28.02.2011. However, the same became dutiable w.e.f 01.03.2011. The case of the department is that since the capital goods were received before 01.03.2011 and at tha....
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.... used exclusively for manufacture of exempted goods. It is the contention in the show cause notice as well as in the impugned order that when the capital goods in question was received, the appellant was engaged in the manufacture of exempted goods however it is not clear whether the said capital goods were used in the manufacture of exempted goods. 5.1 As per our view even if the goods per se were exempted during the receipt and installation of the capital goods but if the said capital goods were not put to use for manufacture of any exempted goods it cannot be said that the said capital goods were used exclusively for manufacture of exempted goods in terms of Rule 6(4) of Cenvat Credit Rules, 2004. The revenue has heavily relied upon t....
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....on which the cenvat was claimed by the appellant was never used exclusively for manufacture of exempted goods. However, since the adjudicating authority has decided the case only on the basis that at the time of receipt of capital goods the product was exempted, therefore, the fact regarding commencement of such capital goods and the status of finished goods manufactured from that capital goods whether the same was dutiable or exempted needs to be verified. Therefore, the entire matter deserves to be re-considered in view of our above observation. Accordingly we set aside the impugned order and remand the matter of Appeal No. E/11692/2013 to the adjudicating authority for passing a fresh order after giving sufficient opportunities to the ap....