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2016 (4) TMI 369

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..... The facts conforms to the provisions laid down by the proviso to Rule 4 (2) of CCR, 2004, and there is no ambiguity in the proviso as discussed above. By following the ratio laid down by the Co-ordinate Bench of the Tribunal in the case of Hindalco Industries Ltd. Vs. CCE, Cochin [2008 (1) TMI 292 - CESTAT, BANGALORE], wherein it was decided that the appellant assessee could not be debarred from taking credit so long as the fact of receipt of capital goods in the factory is not disputed and the fact of not having taken credit earlier were proved. In the instant case, both the conditions stand satisfied. Accordingly, the impugned order is set aside. - Decided in favour of appellant - E/469/2012 - Final Order No._ 40577 / 2016 - Dated:- .....

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..... 2 2008-2009 - - Cenvat not availed 3 2009-2010 18.05.2009 Removal of Capital goods Duty paid 4 2009-2010 22.08.2009 Cenvat availed 5 2009-2010 13.01.2010 Differential duty paid on clearances. The credit taken by the appellant has been disallowed on the ground that the appellant was not in possession of the said capital goods at the time of availing of the Cenvat credit on it and the goods were no .....

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..... d. Commissioner (Appeals) and submits that the appellants have failed to take cenvat credit during the financial year 2007-08 and 2008-09 and they are not eligible to avail the credit as they were not in possession of the capital goods at the time of availing the credit. He further submits that sub-rule 2 (b)(4) of Cenvat credit Rules, 2004 provides for taking balance of cenvat credit in any financial year subsequent to the financial year in which the capital goods were received in the factory of manufacture, it envisages the possession of capital goods by the manufacturer of final products. Whereas, in the present case, the entire cenvat credit has been taken without having possession of capital goods. 4. Heard both sides and on perusal .....

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