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2018 (3) TMI 1882 - AT - Central ExciseDisallowance of CENVAT credit - procured capital goods from M/s. Inox Air Products Ltd. but retained the same in that condition in their factory in order to obtain a higher refund under N/N. 32/99-CE dated-8th July 1999 - HELD THAT:- It is not in dispute that the goods have been procured on long term basis and the CENVAT Credit has been taken subsequently after assembling on the same invoices against which the goods were procured. From this it is clear that capital goods were delivered and received in the factory of the appellant in 2007-2008. While usage within the factory may well be a term use in the definition of Rule 3 of CENVAT credit Rules, 2004 which authorises the availment of credit specified and received in the factory. Accordingly, we hold that the eligibility for CENVAT Credit arises in 2007-2008 and these being capital goods, credit should have been availed in 2007-2008 and 2008-2009 - the refund amount of Rs. ₹ 15,95,332/- claimed during these two years was in excess of their entitlement and hence recovery thereof cannot be faulted. As far as the subsequent availment of CENVAT Credit is concerned, without findings of any eligibility for the excess amount claimed and refund arising from deferment of availment of credit, we hold that the entitlement of CENVAT Credit is not deniable. For this reason, recovery of that amount is not correct in law. The appeal of M/s. Premier Cryogenics Ltd. is allowed to the extent of setting aside the demand of Rs. ₹ 22,93,920/- while upholding the recovery of Rs. ₹ 15,95,332/- - Appeal allowed in part.
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