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2022 (2) TMI 1067 - AT - Central ExciseClandestine removal - alleged shortages found by officers on 12.02.1998 in the various premises of the factory - capital goods available to the appellants on the TBA machine purchased and installed by them - CENVAT credit on the TBA machine - Department alleges that there were excesses and shortages in different products in the company on the day of verification - time limitation - HELD THAT:- The department has not made a case against the appellants for demand of duty on goods found in short/excess. Moreover, it is neither alleged by the revenue that appellants have removed the goods clandestinely nor any proof of the same is placed on record. Therefore, duty cannot be demanded on the simple fact that shortages are found in different units. The appellants contention that the shortage found in one unit is found in the other unit cannot be brushed aside. It is evident from the annexures to show cause notices. Hence, duty cannot be demanded on such excesses and shortages. Admissibility of credit on the TBA machine - HELD THAT:- In the instant case, it is not disputed that a declaration, under Rule 57(T)(i), was filed on 14.03.1997, declaring the intent to use the machine for manufacturing Bailey Acqua Water; declaration for intent to use the machine for both Bailey Acqua Water and YoFrooti was filed on 19.03.1997; Machine started for packing YoFrooti from 02.04.1997;YoFrooti Became dutiable on 14.05.1997 and Cenvat Credit was Taken 02.09.1997. The intention is clear about the usage of the machine and the declarations were not denied by the department - in the instant case, the appellants have made clear their intention to use the machine for manufacture of dutiable as well as exempted goods. They have filed two declarations to this effect. The declarations were not contested by the department at the material time. The appellants claim that they had utilised the machine for manufacture of ‘Aqua Bailey’ though on trial basis and the same was not successful. The appellants cleared the scrap of such goods on payment of duty. Learned Commissioner rejects the claim of the appellants saying that the affidavits are filed in a belated manner. It is not the case of the department that the appellant used the capital goods exclusively in the manufacture of exempted products or in provision of exempted services. The appellants have filed declarations under Rule 57(T) (i) and availed credit on 02.09.1997 after YoFrooti Became dutiable on 14.05.1997. We are in agreement with the learned Counsels argument that there is no time limit prescribed for taking credit. They have availed credit within 6 months of receipt of capital goods, for which there is no express bar. Express Bar if any is in relation to the usage exclusively in the manufacture of exempted products or in provision of exempted services - the provisions of Rules need to be understood as they are and it is not for the authorities or Tribunal to supplement the same with arguments however cogent. Time Limitation - HELD THAT:- The appellant is registered with the department, paying central excise duty and are filing periodical ER-1 returns and other declarations as well; the issue involved herein is one of interpretation and is purely legal in nature; moreover, there being no positive act on part of the appellants to suppress any fact from the department and there being no evidence for such allegation, the proposal to invoke extended period is not correct. Appeal allowed - decided in favor of appellant.
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