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Commissioner of Central Excise, Lucknow Versus M/s Visaka Industries Ltd.

2016 (12) TMI 912 - CESTAT ALLAHABAD

Whether the respondent assessee is entitled to Cenvat credit on capital goods received, prior to 25/12/2005, when the trial production was started and thereafter commercial production started from 04/01/2006? - Held that: - I find that in the facts of the present case, it is an admitted fact that the Asbestos Cement Sheets, for which the respondent assessee registered with Revenue, falling under Chapter Heading No.68114010 of Central Excise Tariff Act, 1985 is dutiable. The appellant had only av .....

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erence to the dutiability of final product on the date of receipt of capital goods. - I also placed reliance on the decision of Superior Judicial Forum of this Tribunal, West Zonal Bench, Ahmedabad in the case of Commissioner of Central Excise Versus Gujarat Propack [2008 (9) TMI 170 - GUJARAT HIGH COURT], wherein the capital goods received for manufacture of Granules out of waste arising in manufacture in assessee's unit, which was cleared under exemption. Since as per the assessee s claim .....

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working life and not utilization in a short specific period. - Appeal dismissed - decided against Revenue. - E/868/2009-EX[SM] With CROSS Application No. E/CROSS/227/2009 - 71071/2016 - Dated:- 18-11-2016 - Mr. Anil Choudhary, Member (Judicial) Shri Pawan Kumar Singh, Superintendent (AR), for Appellant Shri T.K. Srivastava, Advocate, for Respondent ORDER Per Anil Choudhary The present appeal is filed by Revenue againstOrder-in-Appeal No. 237-CE/LKO/2008 dated 29/12/2008 passed by Commission .....

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able @ of 8% Adv. at the relevant time. 3. The admitted facts of the case are that the Asbestos Cement Sheets falling under Chapter Heading No.68114010 of Central Excise Tariff Act, 1985 & taxable @ of 8% Adv. But the goods, namely the Asbestos Cement Sheets/products attracted Nil rate of duty under Notification No. 06/2002-CE dated 01/03/2002, on fulfilling the condition that the said goods contained not less than 25% Fly Ash or Phospho-gypsum or both. This notification was rescinded vide N .....

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e Show Cause Notice was issued, dated 19/01/2007 by the appellant, as it appeared to Revenue that the respondent is not entitled to take Cenvat credit as they were manufacturing Tax free good during the period when they received the capital goods. Accordingly, it was proposed to disallow the Cenvat credit amounting to ₹ 31,55,344/- including Education Cess under Rule 14 of Cenvat Credit Rules, 2004 & further penalty was proposed. The Show Cause Notice was adjudicated on contest and the .....

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(T) (DB) as follows:- The Tribunal has observed that the appellants had received the capital goods during the year 2000-01. However they could not take any credit on the capital goods as they were working under exemption. However from 01/04/2001, they started paying duty and opted for the Cenvat Credit Scheme. Therefore they are eligible to take Cenvat credit of duty on the capital goods during the year 2001-02. Under Rule 57AC(2)(a) at the relevant time, the provision was that the Cenvat credi .....

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4(2)(a) & (b) of Cenvat Credit Rules, 2002. We find that these provisions do not deny credit, if it is not taken in the same financial year in which the capital goods were received. It only restricts that in the financial year in which capital goods were received, the credit not exceeding 50% of duty paid on such capital goods can be taken as credit in that financial year. Therefore, denial of 50% credit to the appellants on the ground that they had not taken the same in the same financial y .....

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of Central Excise, Thane reported at 2007 (2016) E.L.T. 133 (Tri. LB) wherein in respect of eligibility of 50% credit on capital goods, the question was whether the Credit eligibility to be determined with reference to the dutiability of the final product on the date of receipt of capital goods permitting eligibility of 50% credit on capital goods, used exclusively in manufacture of exempted goods. Accordingly, held, the credit eligibility was to be determined with reference to the dutiability .....

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