TaxTMI 
TaxTMI 
2022 (8) TMI 1089
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....ilized only to pay duty of export clearances. This CENVAT credit was availed on capital goods which were received in the factory from April 2007 to June 2010. They then started using the credit availed on capital goods to pay duty on exported goods from the month of June 2010. For the period prior, i.e. from June 2007 to 9.10.2010, the appellant had opted for full duty exemption on all clearances (domestic clearance and export clearance) in terms of Notification No. 30/2004-CE dated 9.7.2004. Originally for the period prior to 10.6.2010, the appellant had not taken any credit on capital goods or inputs. From 10.6.2010 they started taking credit on capital goods and used the credit to pay duty on finished goods. They had intimated the same to the department on 8.6.2010. According to department the credit availed on capital goods received in the factory prior to 10.6.2010 while the appellant was enjoying full duty exemption in terms of Notification No. 30/2004-CE dated 9.7.2004 was not eligible. Further, the appellant had not produced any certificate disclaiming the depreciation benefit on credit taken on capital goods which was required for the goods received prior to 31.3.2010 as a....
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....ially, the appellants were availing the benefit of full exemption in terms of Notification No.30/2004-CE dated 9.7.2004 for the period from June 2007 till June 2010. The appellant made domestic clearances as well as export clearance without payment of duty in terms of Notification No. 30/2004. As per this notification, the goods cleared are exempted from payment of duty even though credit has been availed on capital goods. To be more clear, he stressed that the notification does not bar availment of credit of duty paid on capital goods. He adverted to the Corrigendum to Notification No. 30/2004-CE by MF (DR) Corrigendum F. No. 334/3/2004-TRU (Pt. I) dated 9.7.2004 to submit that on the very same date the corrigendum was issued to the notification wherein it was clarified that the notification bars availment of credit on inputs and not capital goods. Therefore, for the period prior to 10.6.2010, the appellant had been availing the benefit of this notification and clearing goods without payment of duty. However, prior to 10.6.2010, they had not availed any credit on inputs or capital goods. On 10.6.2010, they availed the credit on capital goods which had been received in the factory ....
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....he said decision was followed in the case of Oswal Woollen Mills Ltd. Vs. CCE, Ludhiana reported in 2012 (284) ELT 240 (Tri. Del.). 9. It is also alleged by the department that the goods which are exported have to be treated as exempted goods. It is submitted that this view taken by the authorities below is highly erroneous as the goods which are exported are not exempted goods. The provisions of Rule 6(4) of CENVAT Credit Rules, 2004 will not apply to goods which are exported. This is clear from Rule 6(6) of CENVAT Credit Rules, 2004. 10. Subsequently from 10.6.2010, the appellants started availing the benefits of both the Notification 29/2004 and 30/2004. He submitted that the goods cleared by the appellant during the impugned period where of two types. The first type of clearance was for home consumption by availing the benefit of exemption Notification No. 30/2004-CE dated 9.7.2004. The second type of clearances are export clearances. This cannot be considered as exempted goods. To support this argument, the learned counsel relied upon the decision in the case of India Poly Fibres Ltd. Vs. Collector of Central Excise, Allahabad reported in 1999 (111) ELT 48 as well as S.H. Ke....
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....y Authority held that at the time of receipt of capital goods in the factory, final product was cleared without payment of duty by claiming full exemption under Notification No. 30/2004-CE. The capital goods having been used exclusively in the manufacture of exempted goods, the credit is not eligible. 14. She relied upon the decision of the Tribunal in the case of CCE Vs. Surya Roshni reported in 2003 (155) ELT 481 and argued that the eligibility of credit on capital goods has to be determined at the time of receipt of the goods into the factory. The said decision was upheld by the Hon'ble Supreme Court as reported in 2003 (158) ELT A273 (SC). She submitted that since the finished goods were cleared by the appellant for the period prior to 10.6.2010 without paying duty, the credit availed by the appellant on capital goods is not admissible. It is also submitted that the appellant has filed a writ petition against the order passed by the Revisionary Authority before the Hon'ble High Court and the same is pending. She requested to remand the matter to the original authority with direction to await for the judgment of the Hon'ble High Court. 15. Heard both sides. 16. Th....
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....tification No. 30/2004, dated 9-7-2004 by which goods falling under specified sub-headings of Chapter 52 of the First Schedule to the CETA, 1985 (the assessee is a manufacturer of cotton yarn falling under one of the specified sub-headings of Chapter 52), provided that nothing contained in the notification would apply to the goods in respect of which credit of duty paid on inputs or capital goods has been taken under the provisions of the CENVAT Credit Rules, 2002. On the same date of the issue of the above notification viz 9-7-2004 a corrigendum was issued so as to bar the availment of the exemption under the notification by a manufacturer availing input credit only. Therefore, there was no bar to the availment of exemption under Notification No. 30/2004 by a manufacturer availing capital goods credit. This apart, Rule 6(4) of the CENVAT Credit Rules, 2004 bars availment of credit on capital goods used exclusively in the manufacture of exempted goods, while in the present case, the duty on cotton yarn is an optional one enabling a manufacturer to clear the goods either without payment of duty or on payment of duty. Under these circumstances, it cannot be said that capital goods ar....
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....pellants submitted that removal of the goods without payment of duty is not exempted; that utilisation of credit is in order; that the bar under Rule 57C does not cover removal of the goods without payment of duty under Rule 191B; that in the facts of the case neither Rule 57C nor Rule 57G can be invoked to deny Modvat credit; that Rule 57-I is not applicable in the facts of the present case. The appellants contended that in view of the notification issued under Rule 191B specified excisable goods for the manufacture of articles in bond for export the said articles can be removed without payment of duty; that the notification also specifies a condition that the manufacturer of the articles for export enter into a bond to the extent of twice the amount of excise duty payable on the excisable goods obtained without payment of duty; that this clearly shows that the excisable goods which are for the manufacture of articles in bond are not exempted; that the notification issued under Rule 191B simply permits the goods to be removed or supplied without payment of duty to the manufacturer of articles which are to be exported under bond. The Assistant Collector confirmed the demand. On app....
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....any export consignment only the goods are exported and not the taxes. The Rule 6(6)(v) of the Cenvat Credit [Rules], 2004 provides that Rule 6(4) will not be applicable in the case of export under bond. The same dispension is required to be given for the goods exported by the appellant. (ii) To support his contention he relied on the decision of the Hon'ble Bombay High Court in the case of Repro India Ltd. v. Union of India, 2009 (235) E.L.T. 614 (Bom.). He further submitted that above judgment was followed by the Hon'ble Himachal Pradesh High Court in the case of Drish Shoes Ltd. - 2010 (254) E.L.T. 417 (H.P.). (iii) He also submitted that the capital goods in question, during the period under dispute has also been used for making goods which were exported under claim of rebate. 4. Ld. DR justified the impugned order. He submitted that the goods remained fully exempted in terms of Notification No. 30/2004 and hence, the capital goods used for manufacture of such goods cannot be allowed Cenvat credit since these are being used exclusively in the manufacture of exempted goods. 5. We have heard both sides and considered the appeal record. The capital goods in question, ....