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2018 (2) TMI 1243 - AT - Central ExciseCENVAT credit - It appeared to the Department that since the capital goods were not installed in the premises of the assessee but in the premises of HLIPL which had separate Central Excise Registration, availment of credit thereof by the assessee was not in order - Held that: - for availing credit of capital goods the conditionalities of Rule 2 (a) of CCR 2004, will require to be satisfied interalia that goods should be used in the factory of manufacture of final products - From the facts on record, it appears that the assessee has availed credit under cover of invoice dated 01.11.2008, which was around five months prior to the date of the said merger. However, at the same time if the assessee had not taken the credit on or around 01.11.2008, but only on or after 01.04.2009, the availment of credit would not have excited any controversy. In our opinion, therefore assessee s right to avail the credit on the said capital goods is very much available w.e.f. 01.04.2009 and the availment of credit prior to that date does not extinguish such eligibility - the availment of Cenvat credit by the assessee cannot be disturbed, however, the assessee will require to discharge interest liability at applicable rates, for the period 01.11.2008 to 01.04.2009. CENVAT credit - the importation of these goods have been made under project imports for which specific Chapter Heading 98.01 exists in the Customs Tariff - Held that: - Evidently, there is no corresponding entry in the Central Excise Tariff. Hence, for purposes of charging additional duty of customs (CVD) the classification of those goods under CETH will be relevant at the time of import. Thus for a project import under CTH 98.01, the capital goods involved in the import will be necessarily classified under different CETH headings for CVD purposes. Keeping in mind this scenario, legislature has specifically inserted an Explanation to Rule 3 (1) of the Rules, which clarifies that a manufacturer or producer of final products shall be allowed Cenvat credit of additional duty of all goods falling under CTH 98.01 - The takeaway from this Explanation is that once the goods are imported under CTH 98.01, irrespective of where the goods would be classifiable under CETH, they will become eligible for availment of the CVD portion as capital goods credit - credit rightly allowed. Appeal allowed in part.
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