TMI Blog2014 (5) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... ions which is clearly contrary to the provisions of Rule 57AC(c) of the Rules, the Hon’ble Supreme Court, after considering the provisions of Rule 57Q(3) of the Rules which was in existence prior to 1-4-2000 and also the provisions of Rule 57AC of the Rules which has come into effect from 1-4-2000, has clearly held that in view of the provisions of Rule 57AC(c) of the Rules, Cenvat credit may also be taken in respect of such capital goods having been received in the factory, but have not been installed before 1-4-2000 subject to the condition that during the financial year 2000-2001, the credit shall be taken for an amount not exceeding 50% of the duty paid on such capital goods - in respect of capital goods received prior to 1-4-2000, inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent s unit and found that the respondent had irregularly availed the Cenvat credit during the period from 1-4-2000 to 31-3-2001 and April and May, 2001 on capital goods and spares falling under Chapter 98.01 of the Customs Tariff Act, 1975 and which were received by the factory prior to 1-3-2000. It is the contention of the Revenue that since Rule 57Q(3) of the Central Excise Rules, 1944 (hereinafter called as the Rules ) provided that credit of additional duty leviable on goods falling under Chapter Hearing No. 98.01 shall be allowed to the extent of 75% of the additional duty paid on such goods. This provision was amended and the words 75% was changed to 100% by Notification No. 11/2000-C.E. (N.T.), dated 1-3-2000. As per the said ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d further, interest was demanded under Section 11AB of the Act and imposed penalty of Rs. 1,69,10,576/ - under Section 11AC of the Act and under Rule 173Q of the Rules. Being aggrieved by the said order, the respondent-assessee preferred an Appeal No. 333/2004 before the CESTAT. The CESTAT, by order dated 10-2-2004 [2004 (178) E.L.T. 548 (Tribunal)], keeping open all connected issues, remanded the matter for adjudication afresh observing that the Adjudicating Authority may examine the issue afresh on the applicability of Rule 57AC(2)(c) of the Rules and to pass appropriate orders in accordance with law. Accordingly, after remand, the Adjudicating Authority, after giving opportunity to the respondent of being heard, examined all the issues a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) Whether the Tribunal is right in granting Cenvat credit in spite of the explicit legal provisions contained in Rule 57Q(3) of the Central Excise Rules, 1944? and (2) Whether the Tribunal is right in setting aside the levy of penalty on the debt payable upon the capital goods? 4. We have heard the learned counsel appearing for the appellant. 5. The learned counsel appearing for the appellant submitted that the Tribunal was not justified in holding that the assessee is entitled to the provisions of new Rule 57AC which has come into effect from 1-4-2000 as the goods had been installed prior to 1-4-2000 and the question as to whether the goods which were received prior to 1-4-2000 were utilised after 1-4-2000 has been consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led credit of 50% for the assessment year 2000-2001 and availed credit of 50% in the next year which was clearly irregular. In view of the provisions which is clearly contrary to the provisions of Rule 57AC(c) of the Rules, the Hon ble Supreme Court, after considering the provisions of Rule 57Q(3) of the Rules which was in existence prior to 1-4-2000 and also the provisions of Rule 57AC of the Rules which has come into effect from 1-4-2000, has clearly held that in view of the provisions of Rule 57AC(c) of the Rules, Cenvat credit may also be taken in respect of such capital goods having been received in the factory, but have not been installed before 1-4-2000 subject to the condition that during the financial year 2000-2001, the credit sha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
