ARISHT SPINNING MILLS Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THIS is an appeal against the order of Commissioner (Appeals) No. 82/CE/CHD/2007 dated 28.3.07.

(2.) HEARD both sides.

(3.) LEARNED advocate for the appellants submits that during relevant period, they were eligible to avail either full exemption under Notification No. 30/04 or concessional rate of duty under Notification No. 29/04 -CE dated 9.7.04. During the month of June, 2005, they have availed the exemption Notification No. 30/04 for some clearances and the exemption under Notification No. 29/04 for other clearances. In fact, they have been allowed second instalment of Cenvat credit without any objection. They also intended to avail the benefit of Notification No. 29/04 and therefore, credit taken by them in March, 2005 should not be denied. He relies on the decision of Tribunal in the case of Surya Roshni reported in : 2003 (155) ELT 481 wherein it has been held that relevant date for the date of availing credit is the date of receipt of capital goods. He submits that they had intention to clear the goods under Notification No. 29/04 also. Since there was intention to clear excisable goods under Notification No. 29/04 as well, they were eligible for the credit. He also relies on the decision of the Tribunal in the case of Ispat Metallics Ltd., 2005 (191) ELT 1107 wherein the word 'used' has been interpreted. He also relies on the decision of the Tribunal in the case of Arvind Mills Ltd. v. CCE, Ahmedabad reported in : 2005 (182) ELT 362. In the said decision, it has held that credit on the capital goods which were initially used in the manufacture of exempted cotton knitted fabrics were eligible, in as much as, the said machineries were later used for dutiable man made fabrics and yarn. He also relied on the decision of the Supreme Court in the case of BPL Display Devices Ltd. v. CCE, Ghaziabad reported in, 2004 (174) ELT 5 (SC).