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TMI Blog2019 (6) TMI 559X X X X Extracts X X X X X X X X Extracts X X X X ..... d on such capital goods in two parts. They availed 50% in the month of March, 2002 and the balance 50% in the month of April, 2002 i.e. the next Financial Year. The said ISO Dewaxing Unit was set up and finally was available for commercial production on 26.03.2003. The Department was of the view that the second installment of 50% of the cenvat credit on the capital goods availed by the appellant in April, 2002, was irregular inasmuch as at the time of availing the second 50% credit, the capital goods were not yet installed for use of the manufacturer. On these lines, show-cause notice dated 05.03.2003 was issued to the appellant proposing to recover the part of the cenvat credit availed on the capital goods in April, 2002. The issue was dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the process of erection have not been yet carried out. He submitted that the appeal filed against the decision of the Larger Bench by the Revenue to the Gujarat High Court was decided in favour of the appellant in their own case as reported in 2014 (305) ELT 507 (Guj.). (iii) He also relied on other several case laws, in which, similar views have been taken. (iv) Finally, he submitted that the cenvat credit cannot be denied to the appellant. 5. The ld.D.R. for the Revenue justified the impugned order. He submitted that before availing second installment of the cenvat credit on capital goods, the appellant was required to satisfy the conditions of possession as well as the use of the capital goods. He submitted that before the cap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts in the factory of the manufacturer : Provided that in respect of final products falling under Chapter 62 of the First Schedule to the Tariff Act, the CENVAT credit of duty paid on inputs may be taken immediately on receipt of such inputs in the registered premises of the person who gets such final products manufactured on his account on job work subject to the condition that such inputs are used in the manufacture of such final products by the job worker. (2) (a) The CENVAT credit in respect of capital goods received in a factory at any point of time in a given financial year shall be taken only for an amount not exceeding fifty per cent of the duty paid on such capital goods in the same financial year; (b) The balance of CENVAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) E.L.T. 79 (Bom.)] held as under :- "2. Rule 4(2)(b) of the Cenvat Credit Rules as it stood at the material time provided as follows : "The balance of Cenvat Credit may be taken in any financial year subsequent to the financial year in which the capital goods were received in the factory of the manufacturer, if the capital goods other than components, spares and accessories, refractories and refractory materials and goods falling under heading No. 68.02 and subheading No. 6801.10 of the First Schedule to the Tariff Act are in the possession and use of the manufacturer of final products in such subsequent years." 3. In the present case, it is not in dispute that the assessee received capital goods for the Hot Strip Mill- Phase II p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordingly dismissed. There shall be no order as to costs." 10. In view of the above decision of the Hon'ble Bombay High Court in Central Excise Appeal No. 139 of 2008 (CCE v. Ispat Industries Ltd.) order dated 7-6-2011 [2012 (275) E.L.T. 79 (Bom.)], question referred to the Larger Bench is answered as under :- The condition imposed under the relevant Cenvat Credit Rules, for taking credit of balance of 50% of amount of duty on capital goods in subsequent financial years, in case the capital goods are lying in the factory for installation and the process of erection was being carried out has to be considered as the capital goods were in possession and use for manufacture." 9. The decision of the Larger Bench of the Tribunal has als ..... X X X X Extracts X X X X X X X X Extracts X X X X
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