TaxTMI 
TaxTMI 
2024 (3) TMI 453
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....d 28.11.2022 passed by the Customs Excise & Service Tax Appellate Tribunal, Western Zonal Bench, Ahmedabad (for short 'the Tribunal') in Appeal No. Ex/10544 of 2021-DB : "A. Whether it was right on the assessee's part to adopt a hybrid option of post clearance availment of Ineligible CENVAT credit on inputs and payment of amount equal to 6% of the value of such exempted goods under rule 6(3) of the Credit Rules. The devised hybrid method is definitely leading to unjust enrichment as the assessee cleared goods without payment of duty, availed whole of CENVAT credit on inputs in violation of the condition prescribed in Notification No. 30/2004-C.E., and then reversed a part of the same in ostensible & purported compliance with rule 6(3)....
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.... of sub-rule (3D) of Rule 6 of the Rules, the compliance of the condition of the notification stood met with. 3.5. The Tribunal has also considered the submission made on behalf of the appellant-Revenue that the adjudicating authority has relied upon the Notification No. 30 of 2004 which does not provide for any relaxation that after taking credit if the same is reversed, condition of Notification would be satisfied. It was therefore submitted before the Tribunal that according to the condition of the Notification, once the assessee availed the Cenvat Credit on inputs, the condition stand violated and therefore, the assessee would not be eligible for exemption Notification. 4. However, the Tribunal considering the fact that the assessee h....
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....refore, it cannot be said that the appellant have violated the condition of notification. This issue has been considered by this Tribunal in the case of Vineet Polyfab Pvt. Limited cited by the learned Counsel wherein the following order was passed:- "4. We have carefully considered the submissions made by both sides and perused the record. We find that though the appellant have availed Cenvat credit in respect of Inputs used in the manufacture of Polyester Texturised Yarn and cleared under nil rate of duty but it is also a fact that appellant have reversed the amount equal to 6% as provided under Rule 6(3) of Cenvat Credit Rules, 2004. With reference to similar notifications, such condition of non-availment of credit, a specific provisi....
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....sion pointed out by the Ld. Counsel for the appellant even before the introduction of the said sub-rule in 2011. The Tribunal held that payment of amount under sub-rule (3)(i) of Rule 6 will make the assessee eligible for claiming such exemption the present one. We find the case laws relied on by the ld. Counsel for the appellants clearly support their contention. The decisions of the Tribunal in Life Long Appliances Ltd (supra), was affirmed by the Hon'ble Supreme Court reported at 2006 (196) E.L.T. A144 (S.C.) We find the original authority had fallen in error in not considering the said sub-rule (3D) and relying on explanation (3) of Rule 3. We find the said explanation has no relevance to the facts of the present case in view of the....
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....erefore rightly come to the conclusion that the adjudicating authority has fallen into the error in not considering the sub-rule (3D) of Rule 6 of the Rules and has only relied upon the explanation (3) of Rule 3 of the Rules which has no relevance to the facts of the present case in view of the specific provision of sub-rule (3D) of the Rule 6 of the Rules. 6. The relevant provisions of sub-rule (3D) of Rule 6 and Rule 6(3) of the Rules read as under : "Rule 6(3) (a) A manufacturer who manufactures two classes of goods, namely (i) non-exempted goods removed; (ii) exempted goods removed Or (b) a provider of output service who provides two classes of services, namely (i) non-exempted services; (ii) exempted services, shal....