TMI Blog2015 (4) TMI 1030X X X X Extracts X X X X X X X X Extracts X X X X ..... - - Dated:- 24-4-2015 - SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) For the Petitioner : Shri V.K. Agrawal, Addl. Commissioner (A.R.) ORDER Per: Anil Choudhary: The Revenue is in appeal against order of the Commissioner (Appeals) whereby it has been held that although the capital goods on the date of receipt, being utilized for manufacture of exempted goods, CENVAT credit was not available, but subsequently the finished products became taxable and accordingly the assessee was entitled to take CENVAT credit in the second year, as the end product was taxable. 2. The respondent-assessee is absent in spite of notices served. The assessee had filed a request for adjournment on 13/2/15, same was allowed and next da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent-assessee filed the transitional claim for availing credit on stock of inputs as well as on capital goods, lying in the stock vide their letters dated 31/3/2006, in view of the notification number 4/2006. The respondent-assessee also started paying Central Excise duty on their final products with effect from 1/3/06. During the scrutiny by the Revenue of the transitional claim it was noticed that the assessee have taken initial 50% CENVAT credit of ₹ 76,153/- on capital goods which was received in the factory premises on 30/6/04, as appeared from GRN and mentioned in the statement prepared by the respondent-assessee for claiming the transitional credit. The respondent-assessee imported the said capital goods under bill of entry No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt-assessee is relying on the ruling of this Tribunal in the case of Ace Timez Vs. Commissioner of Central Excise, Bangalore reported in 2004 (170) ELT 371 (Tri.-Bang, wherein this Tribunal had held that credit on capital goods not taken during the period when final product was exempted, could be taken when the exemption was withdrawn and final products becomes dutiable subsequently. There was no time limit prescribed for taking such credit and the assessee was permitted by law from taking the credit, during the relevant period. 4. The show-cause notice was adjudicated holding that the eligibility of CENVAT credit has to be decided on the date of receipt of the capital goods in the factory of production and accordingly the proposed deman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the Honble Supreme Court in the case of Commissioner Vs. Surya Roshni Limited 2003 (158) ELT A273 (S.C.), holding that availability of MODVAT credit is to be looked into at the time of receipt of capital goods and that MODVAT credit will not be available if capital goods are exclusively used in the manufacture of exempt products. The appeal against the order before the Hon'ble Apex Court was dismissed. The Larger Bench also took notice of the earlier decision by this Tribunal (affirmed by Hon'ble Supreme Court) in the case of Grasim Industries Ltd. Vs. Commissioner - 2005 (179) ELT A38 (S.C.) which was affirmed by the Honble Apex Court, held, the relevance of the date of receipt of capital goods for the purpose of availment o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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