2023 (12) TMI 1064

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....nder Notifications No.29/2004-CE and No.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 i....

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....nd for exports, they availed Notification No.29/2004. The brief issues that arise in the case are as to whether the appellants can avail both the 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 res....

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....or rebate of duty, it is seen that, at the material point of time, there were two rates of duty applicable to cotton fabrics - one a 'nil' rate prescribed under Notification No. 29/2004-C.E. as amended and the other '4% adv.' prescribed under Notification No. 59/2008-C.E., dated 7-12-2008. 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 ....

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....exemption Notification 30/2004-C.E. only and they cannot opt from Notification No. 29/2004-C.E. and pay 4% the duty and in such a situation if any duty payment has been made, it would have to be treated as deposit and the clearances would have to be treated as clearances of fully exempted goods made under 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 cr....