TMI Blog2017 (3) TMI 991X X X X Extracts X X X X X X X X Extracts X X X X ..... CENVAT credit - denial on the ground that the invoices issued by MUL is neither a supplementary invoices nor a original invoice for the capital goods and therefore is not a valid document - Held that: - it is not in challenge that the said capital goods were installed and used by the appellant in their factory. That being the case, non-filing of declaration and not accounting the same in RG-23 Part-I register is only the procedural defect for which credit cannot be denied. The ground that MUL was never in possession of capital goods and hence should not have been issued the invoices is without merit and not legal practice and, therefore, is discarded. The ground that the credit under Rule 3 of the Cenvat Credit Rules can be taken only in respect of the goods received in the factory on or after 1.3.2002 is misplaced in so far as in the instant case, the credit has been taken on supplementary invoices, which is a valid document in terms of Rule 7(1)(b) of the Cenvat Credit Rules, 2002. Appeal allowed - decided in favor of appellant. - E/1975, 1976 & 2014/06 - A/86145-86147/17/EB - Dated:- 28-2-2017 - SHRI RAMESH NAIR, MEMBER (JUDICIAL) SHRI RAJU, MEMBER (TECHNICAL) App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo supplementary invoices for the amount of CVD paid by MUL with respect to the said machine in November, 2000 and the appellants took credit of 50% of the said amount of CVD in the financial year 2001-02 and balance in the financial year 2002-03. In March, 2003, the appellants paid ₹ 36,38,683/- being differential duty on total amount of differential customs duty and interest paid and borne by MUL on account of non-fulfillment of export obligation. The said amount was amortized in respect of clearance of Booster assembly made by the appellant during the period 10.04.2002 to 28.02.2003 to their Gurgaon factory. The Commissioner of Central Excise issued a show-cause notice proposing to deny credit of ₹ 25,21,414/- taken in respect of the capital goods and demand of duty of ₹ 36,38,683/- as duty on the total amount of differential customs duty and interest paid by MUL to Customs in respect of import of said machine. 2.3 The credit was sought to be denied on the ground that the invoices issued by MUL is neither a supplementary invoices nor a original invoice for the capital goods and therefore is not a valid document. 2.4 The demand of duty was on the ground th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Counsel further argued that denial of credit of CVD paid on the said machine is not maintainable. He argued that the said issue has already been settled in favour of the appellant by the decision of Commissioner (Appeals), In the case of appellant s Chakan factory. He argued that in similar circumstances, MUL had set same capital goods to the appellant s Jalgaon factory. In similar circumstances, the CENVAT Credit was sought to be denied to the goods in respect of Jalgaon factory for denial of credit. He argued that in the said case, initially the credit was denied and the matter was agitated before the Tribunal. The Tribunal vide Order dated 25.12.2004 remanded the matter back to Commissioner (Appeals). He further argued that Commissioner (Appeals) vide Order dated 7.6.2005 allowed the appeal of the appellant. 3. Learned AR relied on the impugned order. 4. We have considered the rival submissions. From the facts of the case, it is apparent that imports were made under EPCG scheme and the responsibility for fulfilling the export obligation was taken by MUL. The machine was leased by MUL to the appellant on fixed lease rental basis on the full cost at the time of import. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Another ground in the order of the lower authorities for disallowing the credit is that the value of the goods depreciated to about ₹ 10 lakhs. Learned Counsel for the appellant brings it to our notice that the provision for depreciation is not relevant for the reason that they have taken credit only of the amount as duty and paid by the MUL that supplementary invoice has been held by the Tribunal to be valid document for the purpose of the availment of the credit. Over and above this, there is a certificate from MUL on the basis which credit was taken and said certificate has been issued by the Asstt. Commissioner. On the point of delay, he submits that no time limit is prescribed for taking credit on the capital goods and that credit was taken within a period of four months of payment of duty by the importer viz. MUL. In these circumstances, we find prima facie force in the contention raised. Since we have waived the pre-deposit directed by the lower appellate authority and there is no decision on merits, we set aside the impugned order and remand the case to the Commissioner for fresh decision on merits without insisting on any pre-deposit. Thus, the appeal is allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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