TaxTMI 
TaxTMI 
2023 (12) TMI 1064
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.....30/2004-CE both dated 09.07.2004 for the reason that they have availed CENVAT credit; accordingly, a show-cause notice dated 09.08.2010 was issued seeking to recover CENVAT credit amounting to Rs.8,880/- along with interest and penalty in terms of Rule 14 of CENVAT Credit Rules, 2004 for violation of sub-rule 4 of Rule 6 of CCR, 2004; the demand was confirmed vide OIO dated 26.05.2011; on an appeal filed by the appellants, Commissioner (Appeals), vide impugned order dated 31.01.2013, has rejected the appeal filed by the appellants and upheld the OIO. Hence, this appeal. 2. Shri Surjeet Bhadu, assisted by Shri Agam Bansal, learned Counsel for the appellants, submits that the issue is no longer res integra and in a series of judgments, the ....
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....e notifications and as to whether CENVAT credit is available under such circumstances. 5. We find that the very same issues have been deliberated by the Tribunal in number of cases as cited above. We find that this Bench in the case of Shrijee Lifestyle Pvt. Ltd. has held as follows: * "5. We have carefully considered the rival contentions. From the annexure to the show cause notice it is seen that a demand @ 10% amounting to Rs. 2,50,18,937/- has been made in respect of cotton fabrics exported under bond and a demand at the same rate amounting to Rs. 76,81,014/- has been made in respect of cotton fabrics exported under claim for rebate. Rule 6(6)(v) of the Cenvat Credit Rules, 2004 reads as follows: * "(6) The provisions of sub-rules ....
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..... Both these rates were unconditional rates. Therefore, it is not the case that the goods have been completely exempted. When two different Notifications prescribe two rates of duty, the assessee is at liberty to opt for whichever is beneficial to him. It is further on record that the assessee had consulted the department and as per the department's advice, the assessee had opted for payment of duty @ 4% under claim for rebate in respect of exports in some cases. Therefore, it is not a situation where the duty credit on inputs were availed in respect of exempted goods and dutiable goods simultaneously. Hence the provisions of Rule 6(3) of the Cenvat Credit Rules, 2004 is not applicable in the facts of the case. 6. We further find that the ....
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....nder Notification No. 30/2004-C.E. and accordingly the appellant would not be eligible for capital goods Cenvat credit. This contention of the Department is totally incorrect, as Exemption Notification No. 29/2004-C.E. is an unconditional exemption which prescribes a rate of duty of 4% ad valorem. There is no condition in this notification that for availing of this exemption prescribing concessional rate of duty of 4% adv., input duty Cenvat credit must be availed. The condition of non-availment of input duty Cenvat credit is for nil duty under Notification No. 30/2004-C.E. But this does not mean that an assessee not availing input duty credit cannot avail the exemption under Notification No. 29/2004-C.E., as this is an unconditional Notifi....