TMI Blog2010 (3) TMI 360X X X X Extracts X X X X X X X X Extracts X X X X ..... in subsequent financial year before the capital goods were put to use and the capital goods were actually put to use after taking of credit hence allowed the credit however demanded the interest in respect of the credit taken and utilized before the capital goods were put to use. Held that- Tribunal in the cases of Ballarpur Industries Ltd., Parasrampuria Synthetics, Ispat Industries Ltd. relied upon by the Appellant held that the installment is pre-requisite for taking second 50% CENVAT credit on capital goods as provided under Rule 4 of CENVAT Credit Rules. In view of above discussion we find no infirmity in the impugned order. The Appeal is dismissed. - E/EDM/819/2004 - A-239/KOL/2010, - Dated:- 30-3-2010 - S/Shri S.S. Kang, Vice-Pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Appellant is that during the period in dispute i.e. 2001 and 2002 as per the provisions of Rule 4(2B) of CENVAT Credit Rules provides that the balance of CENVAT Credit may be taken in any financial year subsequent to the financial year in which capital goods were received in the factory of manufacture if the capital goods are in possession and use of the manufacturer of final product in such subsequent year The credit was availed in the subsequent financial year in which the capital goods were put to use therefore the demand of interest is not sustainable. The contention is that the finding of the adjudicating authority that balance of CENVAT credit is to be taken after the capital goods were put to use is clear violation to the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dhandas v. H.H. Dave, Assistant Collector of C. Ex. Customs - 1978 (2) E.L.T 350 (S.C.) and other decisions of the Hon'ble Supreme Court to this effect. On merits Appellant relied upon the decision of the Tribunal in the cases of Ballarpur Industries Ltd. v. Commissioner of C. Ex. Cus., Nagpur - 2003 (156) E.L.T. 423 (Tri.-Mumbai), Goyal MG. Cases Pvt. Ltd. v. Commissioner of C fx., Ghaziabad - 2004 (168) E.L.T. 369 (Tri.-Del.), Parasrampuria Synthetics v. Commissioner of Central Excise, Jaipur -2004 (170) E.L.T. 327 (Tri-Del.) and Ispat Industries Ltd. v. Commissioner of Central Excise, Raigad - 2006 (199) E.L.T. 509 (Tri.- Mumbai). 5. Revenue submitted that as per the clear provisions of the CENVAT Credit Rules the credit is to be t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... installation of the capital goods are not sustainable. For ready reference the provisions of Rule 4 of the CENVAT Credit Rules 2001 is reproduced below:- RULE 4. Conditions for allowing CENVAT Credit. - (1) The CENVAT credit in respect of inputs may be taken immediately on receipt of the in puts in the factory of the manufacturer: Provided that in respect of final products falling under Chapter 62 of the First Schedule to the Tariff Act, the CENVAT credit of duty paid on inputs may be taken immediately on receipt of such inputs in the registered premises of the person who gets such final products manufactured on his ac count on job work subject to the condition that such inputs are used in the manufacture of such final products by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deals with the provisions for taking the Cenvat credit in the subsequent financial years. As per this sub-rule, the balance of Cenvat credit may be taken in any financial year, subsequent to the financial year in which the capital goods were received in the factory of the manufacturer, provided that the capital goods are still in the possession and use of the manufacture of final products in such subsequent years. A perusal of sub-rule 2(b) of Rule 57AC makes it very clear that the balance 50% of Cenvat credit can be taken by a manufacturer and (ii) in use of the manufacture of final product in subsequent year. As admittedly the capital goods are not in use of the appellants in subsequent financial year, in which the balance 50% credit has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mere receipt of the capital goods in the factory and after the receipt of capital goods in the factory the subsequent installment of CENVAT credit could be availed in the subsequent financial year to the financial year in which the capital goods were received in the factory of the manufacturer pro vided that the capital goods are still in the possession and use of the manufacturer of the final product in such subsequent financial year. That only ensured that the capital goods received and installed by the assessee must be at least used for a reasonable period of more than one year in order to avail the full MODVAT/CENVAT credit. Further we find that the Tribunal in the case of Commissioner of Central Excise, Mumbai-II v. Fiat India Pvt. Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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