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2016 (12) TMI 912 - AT - Central ExciseWhether the respondent assessee is entitled to Cenvat credit on capital goods received, prior to 25/12/2005, when the trial production was started and thereafter commercial production started from 04/01/2006? - Held that: - I find that in the facts of the present case, it is an admitted fact that the Asbestos Cement Sheets, for which the respondent assessee registered with Revenue, falling under Chapter Heading No.68114010 of Central Excise Tariff Act, 1985 is dutiable. The appellant had only availed a conditional exemption for a short period which under the facts had been applied for and availed subsequent to the receipt of capital goods. Even, on the basis of Larger Bench of this Tribunal, in the case of Spenta International Ltd.[2007 (8) TMI 25 - CESTAT, MUMBAI], the products of the appellant, being Asbestos Cement Sheets was taxable under Chapter Heading No.68114010 of Central Excise Tariff Act, 1985. Accordingly, the credit eligibility is determined in favor of respondent with reference to the dutiability of final product on the date of receipt of capital goods. I also placed reliance on the decision of Superior Judicial Forum of this Tribunal, West Zonal Bench, Ahmedabad in the case of Commissioner of Central Excise Versus Gujarat Propack [2008 (9) TMI 170 - GUJARAT HIGH COURT], wherein the capital goods received for manufacture of Granules out of waste arising in manufacture in assessee's unit, which was cleared under exemption. Since as per the assessee s claim, they were not of requisite quality, gradually assessee refined manufacturing process to obtain Granules of requisite quality and most of which quantity is used in the manufacture of film. There was no intention to produce Granules to be cleared on exemption, but to produce Granules for use in the manufacture of film. But in the trial period they could not produce Granules of requisite quality and had to clear them under exemption and that the use of the machine is to be seen with regard to its working life and not utilization in a short specific period. Appeal dismissed - decided against Revenue.
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