TMI Blog2019 (1) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... ejected - In these circumstances, it is apparent that the appellant had sought to follow all the requirements of the cenvat credit Rules, before availing the cenvat credit. Credit allowed - appeal allowed - decided in favor of appellant. - Appeal No. E/697/2010-DB - A/10006/2019 - Dated:- 2-1-2019 - MR. RAMESH NAIR, MEMBER (JUDICIAL) And MR. RAJU, MEMBER (TECHNICAL) For Appellant: Mr. Shailesh Vyas (Advocate) For Respondent: Mr. L. Patra (AR) ORDER Per: Raju This appeal has been filed by M/s Eimco Elecon India Ltd. (EEL) against confirmation of demand of Cenvat Credit, interest and penalty. 2. Ld. Counsel for the appellant submits that the appellant imported certain capital goods as project imports at concessional rate of duty and availed cenvat credit as follows: Sr. No. B/E No. and Date Description of Goods Place of Installation CVD Involved RG-23 A Part-II Entry No. Date [1] [2] [3] [4] [5] [7] 1 863251 Dt. 9.5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue issued the SCN seeking to deny the re-credit availed by the appellant in AAACE4645CXM001 unit invoking Rule 3(1) of the Cenvat Credit Rules on the ground that the credit was taken by AAACE4645CXM001 unit without having receipt / possession of the said capital goods. It was alleged by the Revenue that the appellant did not inform that the goods on which they had availed credit in the year 2005-2006 were cleared by them to the shed No. C2 and H2. It was argued that the appellant had shown receipt of the said capital goods in their RG-23 A part-I register on 23.09.2005 even though they had cleared the said goods outside the factory vide material dispatch Advice No. 609 dated 01.06.2005 and 627 dated 25.07.2005. 2.1 It was also argued that the appellant had rightly reversed the credit in April 2007 as the said machines were not installed in the appellant s premises. It was alleged that the appellant were not entitled to credit since the machines were never installed in the factory and therefore, no credit could have been availed by the appellant. It was also alleged that by removing the capital goods without installation in the factory while simultaneously recording their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel argued that Cenvat credit is taken to remove the cascading effect of taxation and therefore, the CENVAT credit scheme should be interpreted in reasonable manner. He argued that the ownership of capital goods remain with the appellant. He relied on the decision of Tribunal in the case of JSW Ispat Steel Ltd. 2015 (327) ELT 549 (Tri, Mum) and on the decision of Tribunal in the case of Glaxo Smithkline Consumer Health Ltd. 2017 (348) ELT 328 (Tri. Chen.), Pooja Forge Ltd. 2006 (196) ELT 18 (Tri. Del), Habasit Iakoka (P) Ltd. 2014 (306) ELT 455 (Mad.), Mileen Engineers 2016 (332) ELT 839 (Tri. Mum). 2.5 He argued that the goods were used for manufacture of excisable goods which were ultimately cleared on payment of duty. He pointed out that the said capital goods were nor disposed of by the appellant nor alienated in any other manner. 3. Ld. AR relies on the impugned order. He argued that the goods received never installed in the premises of the appellant unit and therefore the question of credit or re-credit in the appellant s unit does not arise. He argued that the primary condition for availment of credit of capital goods is that the capital goods should be installed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vat credit of the duty paid thereon under Rule 57Q. Hon ble High Court after examining the issue observed as follows: 7. There is no dispute that the capital goods involved hereunder is one of the capital goods falling within the schedule to the Central Excise Tariff Act and used for the manufacture of the final products. Therefore, the only other question to be examined is whether the respondent has satisfactorily established the condition namely that the said capital goods were used in the factory for the manufacture of final products. The salient points noted in the report establishes beyond doubt that except the fact that the capital goods were used in the respondent s own premises situated just 500 mts away from the place of manufacture and that after carrying out necessary connected processes in that premises which is called as Mother Roll Plant, the same is brought to the place of manufacture where the final products is rolled out. Therefore, the activity of the respondent in the usage of the capital goods can be said to be part of its manufacturing activities of final product in its registered factory. It is also not the case of the appellant that by usage of the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s but it is also fact that capital goods was installed in the adjacent premises and used in relation of manufacture of final product in the registered premises. Since capital goods was used in the manufacture of final product for which excise duty is paid, in my view, credit is admissible from the date of installation and use of capital goods. Incorporation of the said premises is merely procedure requirement. The main requirement of availing Cenvat credit is that capital goods should be used in the manufacture of dutiable goods which is not under dispute. In view of this position, I am of the view that appellant was entitled for the Cenvat credit from the date of receipt and installation of the capital goods even though the part of the factory of the appellant was incorporated subsequently. As regard reliance placed by the ld. AR in case of Mangal Electricals Industries, I find that in the said judgment facts are not identical as the capital goods was installed in another unit, the assessee s plea was that the goods were removed to another unit for job work whereas in the present case they received capital goods and installed in the adjacent premises but it was indeed used for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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